§ Order for Second Reading read.
§ 3.46 p.m.
§ The Secretary of State for the Home Department and Lord Privy Seal (Mr. R. A. Butler)
I beg to move, That the Bill be now read a Second time.
When I opened the debate on the Franks Report at the end of October last year I announced that the Government accepted in very large measure the recommendations in the Report. The House may recall that the Committee made 95 recommendations, of which roughly one-third were addressed to the procedure and working of tribunals generally, one-third to particular tribunals, and one-third to administrative inquiries relating to land. Of these the Government accepted, in whole or in part, all but 16, and of these 16 only 4 were rejected outright, the balance of 12 dealing with matters to which the Government thought it wise to give further consideration.
The Franks Committee reported in July, 1957. I made a statement on behalf of Her Majesty's Government in October of that year and the legislation has now passed through another place. We trust it will be law by the Summer Recess. Here is an answer to those who talk of pigeon-holing the results of inquiries, and I hope that it will be some reassurance to those distinguished persons outside who undertake these duties for us. It certainly is an example of speed in the execution of their policy by the Government.
I would like to describe for a moment, before I come to Clause 1, the action taken in a variety of ways on the Franks Report. A great deal has been done, and is being done, by the Government to implement the recommendations without asking Parliament to enact general legislation since many of the recommendations can be put into effect without any changes in the law. This action has been taken by regulations, by circulars and by administrative action in a wide area of Government activity covering, for example, National Insurance, military service, health, planning, education. To mention these subjects alone indicates the vast fields covered by this Report and 1604 the intense humanity of the subjects involved.
Sometimes, in listening to the moving of a Second Reading Motion, it may be thought that a Bill is as dry as dust because its provisions are technical, but nevertheless it involves deeply and closely the lives of hundreds of thousands of our citizens in this country. I will give two examples of what I mean.
My first relates to military service hardship committees. These have done valuable work and there has been no general complaint against their procedure. Nevertheless, I am sure the House will agree that it is of the first importance that the man appearing before such a tribunal should feel that he has a square deal and is fairly treated. We have, therefore, already taken action to remove a bar on legal representation before these committees. I am also arranging for their sittings to take place in public, unless the chairman decides that an individual case should be heard in private.
In addition, my right hon. Friend the Minister of Labour and National Service has written to all chairmen of committees and tribunals with which he is concerned, drawing attention to the recommendations of the Franks Committee which do not involve changes in the law, but which may, nevertheless, be of importance to an individual who appears before a tribunal.
My second example concerns national insurance, industrial injuries and national assistance appeal tribunals. The Franks Committee recommended that legal representation before these should be allowed at the chairman's discretion. We have gone further than this, and regulations are already in force which give an absolute discretion to the claimant to be legally represented or not as he may wish. I do not know whether hon. Members realise that the old rules produced rather odd results. For example, a solicitor who wanted to help his mother before a national insurance tribunal was debarred from doing so because of his legal qualifications. Again, I have been informed of a case where a solicitor gave free advice on national insurance questions to poor people but was unable to appear for, them before the tribunals even though he would willingly have done so free of charge. We have 1605 put some of those right and simplified the position.
In addition to all this administrative activity based on the Franks Report, what I might call the idea or spirit of Franks has been or will be embodied wherever appropriate in Departmental legislation. Here, again, I will give some examples. The Agriculture Bill transfers to agricultural land tribunals the judicial functions of the county agricultural executive committees. Recommendations on planning can best be dealt with in the planning Acts—for example, appeals on points of law against a decision as to what constitutes development. Recommendations concerning land acquired for defence purposes are to some extent being implemented in the Land Powers (Defence) Bill and will be further dealt with in revising the Defence Acts. Those, then, are some indications of what is being done. I think that they already amount to something, even without legislation.
The essential features of the Report, however, cannot be put into effect without legislation, and that is the reason for the Bill. I said in the debate last autumn that the first step would be to set up the Council on Tribunals and then refer many other matters to it. The debate which followed was remarkable for the very widespread approval which was shown both of the Report and of the Government's attitude towards it. The existence of such broad agreement on the basic issues with which the Franks Committee was concerned encourages the hope that the Bill will secure the same commendation as was accorded to the Report, for the Bill is firmly based on the Franks Report and does a good deal more than set up the Council on Tribunals, though that is its principal purpose.
I must emphasise to the House that many matters in this highly complicated field of procedure need to be carefully examined in a way which the Franks Committee was not expected to do, and, indeed, did not have time to do. The Council on Tribunals is being set up for this very purpose, and, therefore, in setting up the Council we are far from wasting time—we are taking the vital initial step.
Although the Bill does not bulk very large in physical proportions—in fact, it looks a comparatively slight Bill—I am 1606 sure that it will be regarded by those who care for our institutions and our tradition of fair play as a notable addition to the long series of Measures, stemming from Magna Carta and the Bill of Rights, which preserve our individual liberties.
It is a long time since Parliament deliberately legislated to regulate the balance between the individual and the State. The growth, during the past quarter of a century, of great welfare services and the larger measure of equality which they have brought about have increased, rather than diminished, the need for strengthening the processes whereby the citizen can be satisfied that he is being fairly and considerately treated. To make these processes more judicial in kind and to ensure their subjection to the courts on matters of law is a powerful way of giving the citizen this satisfaction. De Tocqueville put it like this:The strength of the courts of law has ever been the greatest security which can be offered to personal independence; but this is more especially the case in democratic ages: private rights and interests are in constant danger if the judicial power does not grow more extensive and more strong to keep pace with the growing equality of conditions.It is in that spirit that we commend the Bill to the House.
In classical Second Reading style, I will now go through the Bill and explain it to the House. The first and most important provision is Clause 1 which, together with Clause 2, establishes the Council on Tribunals and its Scottish Committee and regulates the way in which they will function. This is an important provision, because the view is very widely held by layman and lawyer alike that the rôle of tribunals in the life of the community has become so powerful that some continuous supervision is essential if the confidence of the public is to be inspired and the citizen assured that they carry out their duties in accordance with the principles of fairness, openness and impartiality.
Accordingly, Clause 1 lays upon the Council the duty of keeping under review and reporting on the constitution and working of the tribunals listed in the First Schedule. It has been found necessary to proceed by way of a list because tribunals defy definition in general terms. Indeed, as Appendix II to its own Report 1607 makes clear, the Franks Committee itself found difficulty in deciding which tribunals fell within its terms of reference.
The basis on which the First Schedule has been compiled has been broadly to include all tribunals of the type which the Franks Committee took to be within its purview, that is to say, bodies other than the ordinary courts which hear and determine disputes or differences and which are constituted under an Act of Parliament by a Minister or for the purpose of a Minister's functions.
The First Schedule, however, is not a final list of tribunals to be supervised by the Council. If, at any time, some other tribunal ought to be added to it, either an existing one or a new one, the Lord Chancellor and the Secretary of State for Scotland, with the approval of Parliament, can make additions. Hon. Members will see, if they examine it, that the Schedule contains the names of over 50 categories of tribunals. Some categories comprise several hundred individual tribunals—a kind of constellation. The supervision which the Council will be called upon to exercise will, therefore, be very extensive indeed. It will have an extremely busy time and it must be allowed a reasonable time to survey its field before it can get down to its work.
A single Council is proposed. The reason that a single Council is provided for the whole of Great Britain rather than, as the Franks Committee recommended, a Council for England and Wales and a separate Council for Scotland, is that so many of the tribunals are organised on a basis of Great Britain as a whole and apply a single code of law. Their codes of procedure should also be uniform throughout the country, and this can best be assured by a single Council. The special interests and peculiarities of Scotland will be looked after by the Scottish Committee of the Council which, although subordinate to the Council, will none the less have the right to make its report direct to the Secretary of State for Scotland if, for any reason, the Council does not adopt that report. The interests of Wales will be amply safeguarded by direct representation in the membership of the Council.
1608 I have seen suggestions that the Council on Tribunals should be given power to send for persons, papers and be obliged to publish reports. It is not usual to give such power to this kind of body, though the Council will present an annual report. Committees of all kinds have no difficulty in obtaining evidence without it. The Franks Committee, hon. Members will recall, had no such power. While we want the Council to have every opportunity, we have to have some regard to the constitutional significance of giving tribunals too great a power.
The first duty of the Council is to keep under review the constitution and working of the tribunals set out in the Schedule to which I have drawn attention. The second main duty with which the Bill charges the Council is to report on particular procedural matters in relation to any tribunal or in relation to statutory inquiries. Here, the Bill goes beyond the strict letter of the Franks Report. The Report suggested that the Council should deal mainly with tribunals, but it also suggested limited responsibilities for inquiries, and the Bill provides for these.
§ Mr. A. J. Irvine (Liverpool, Edge Hill)
This is important. The right hon. Gentleman, in his reference to this part of the Clause, referred to "particular procedural matters", but the phrase in the Clause is "particular matters". So that we may understand what the Government envisage in this connection, will the right hon. Gentleman say whether it will be possible to refer cases to the Council or not? What is proposed?
§ Mr. Butler
It really depends on what the hon. and learned Member means by "cases," because his own language is not more accurate than that which he attributes to me. Cases of procedure, yes, but perhaps we should consider that in the course of our discussion on Second Reading. In any case, my right hon. and learned Friend the Attorney-General will be replying to the debate.
It will be open to the Ministers concerned, the Lord Chancellor and the Secretary of State for Scotland, to seek the Council's advice on questions of procedure at inquiries. I will give one example. We have it in mind to ask the Council to consider whether 1609 inquiries and hearings should be held in public or not. Here is a matter upon which varying opinions have been expressed, and on which the Government would welcome an independent and authoritative view. In addition to enabling matters of this kind to be referred, the Bill provides for the Council, on its own initiative—and this was the result of an Amendment introduced in another place—to consider and report upon particular and important questions of procedure at inquiries.
In our autumn debate, the Council was called a watchdog, and it is now to snuffle like a bloodhound, but it will only do so where the scent is so strong that it has given wide and ranging offence. The matters of special importance which the Bill prescribes are those where there is a growing need for its intervention. I have said, as was said in another place, that these will be cases where some shocking matter of a procedural character occurs.
There are some further functions which the Bill gives to the new Council, and these are set out in Clause 4. This empowers the Council to make, to the Ministers responsible for the appointments to the tribunals named in the First Schedule, general recommendations as to the making of these appointments. This is not quite what the Franks Committee recommended. The Committee suggested that responsibility for the appointment of members, apart from the Chairman should be placed on the Council. As the House was told last October, the Government sympathise with the object of this recommendation, but do not think that it would be desirable for the Council to have executive responsibility.
The daily duty of making appointments—there are about 19,000 names on the panels from which the existing tribunals are selected—over and above the numerous other duties of the Council, would really be beyond its resources. If it were to make all these appointments itself, and, as suggested elsewhere, also draft the rules for the tribunals, and so on, it would need a considerable staff, and might become a small Government Department in itself. The Council will surely best be able to exercise its general supervision over tribunals if it is detached from day-to-day duties of appointment 1610 of individuals, but is free to make general recommendations on the composition of tribunals or the kind of members who are suitable for particular tribunals.
The other additional function of the Council is that of consultant to the rule-making authorities; that is, the Ministers responsible for the tribunals in the First Schedule. The Franks Committee attached much importance to this, and went so far as to say that the Council should actually formulate the rules. The Government feel, however, that this would give the Council an executive function which, for reasons which have been given earlier, would not be appropriate to such a body.
Clause 7 therefore preserves the principle that the Council's rôle should be advisory, but the Council's advice can hardly be disregarded in the matter of the making of rules, because they will be laid before Parliament and the Council will be able to publish in its annual report to Parliament anything which it wishes to bring to public notice. These arrangements will ensure that the principles which it will be the Council's aim to uphold—those principles which I enunciated earlier of openness, fairness and impartiality—will be consistently observed throughout the whole vast range of tribunals for which it is responsible.
I have said that the Council will report annually. I realise that it is the wish of hon. Members that they want to be sure that the Council has every chance of expressing its view, and I should like to say, before we go into more detailed discussion of the Bill, that that is also the wish of the Government. I hope that the result of our labours will be to achieve what hon. Members so much desire.
There are many other provisions in the Bill which do not necessarily impose duties or obligations on the Council, but they seek by other means to ensure that these principles of openness, fairness and impartiality are secured. The first of these is contained in Clause 3, which provides that the chairmen of tribunals not already appointed by the Lord Chancellor or the Lord President of the Court of Session will, in future, be so appointed or be selected by the appropriate Minister from a panel of persons so appointed. This, again, was an important recommendation of the Franks Committee. A few tribunals listed in the First Schedule 1611 are excluded; for example, the chairmen of the traffic commissioners, who have more important executive than adjudicating responsibilities. The power of dismissal of chairmen, if it unhappily should become necessary, goes with the power of appointment.
Clause 4 dealing with the appointment of tribunal members has been mentioned. Clause 5, which provides that members of the tribunals can be dismissed only with the consent of the Lord Chancellor or the Lord President of the Court of Session, is equally if not indeed more important.
It is to be remembered that that celebrated eighteenth century jurist Blackstone said:In this distinct and separate existence of the judicial power in a peculiar body of men, nominated indeed, but not removable at pleasure, by the Crown, consists one main preservation of the public liberty.Hitherto, members of tribunals have generally been subject to removal by the Minister concerned with the tribunals' decisions. Clause 5 provides a safeguard against irresponsible dismissals, and it will also protect the Minister from accusations of dismissing a member because he was too independent. The exceptions to this provision are the bodies which have important executive responsibilities. Where a body has duties which it exercises executively on behalf of the Minister, the latter must have the unfettered power of dismissal; without it, he would not be able to discharge his responsibilities to Parliament.
In Clause 6 there is another important recommendation of the Franks Committee to which the Bill gives effect. It is that the chairmen of all tribunals of second instance should have legal qualifications. The Committee was less emphatic about first instance tribunals, the chairmen of which it thought should ordinarily have legal qualifications The Government entirely accept this, but the recommendation is not one capable of strict legal definition, and it cannot, therefore, be written into the Bill.
As regards second instance tribunals, the only chairmen not already required by statute to be legally qualified—though, in fact, all the present incumbents are so qualified—are the umpire, the deputy umpire and the chairmen of the conscientious objectors' appellate tribunals. 1612 Clause 6 requires these chairmen to have legal qualifications.
Clause 8 should be welcomed by hon. and learned Members on both sides of the House. It provides appeals to the courts on points of law from the decisions of tribunals in the First Schedule which have not already got this appeal. There are a few exceptions to this, into which I need not go in detail; for example, where there already exists a right of appeal to an appellate body.
So much for some of the major and some of the minor matters in the Bill. It may be convenient if I now mention shortly some of the recommendations of the Franks Report with which it was never intended that the Bill should necessarily deal. These have been a matter of comment in the previous passage of the Bill and elsewhere. The first is that the Lord Chancellor should be given power in the Bill to make statutory codes of procedure for inquiries. The position about that is that the Ministry of Housing and Local Government, the Scottish Home Department, the Department of Health for Scotland, and the Ministry of Education have already issued circulars to local authorities on procedure to be followed before, at and after inquiries relating to land, in accordance with the general principles of Parts IV and V of the Franks Report.
Those circulars give effect to a number of recommendations in the third group of the Franks Report, including those on the preliminaries to an inquiry, the giving of evidence by officials of Government Departments, and early notification to people affected by the initiating authorities' proposals. Those very circulars themselves recognise that it is not enough to carry out by administrative action the important recommendations relating to inquiries. The view is held that the codes of procedure should be made statutory. This, after all, is what the Franks Committee said in Recommendation 72, but the Committee recommended that the Council on Tribunals should formulate the code of procedure.
The Government hold the view that the right way to approach the matter is to consult the Council, when it is established, and on the Council's advice a statutory code for inquiries will be prepared. In the meantime, I can reassure hon. Members by telling them that the 1613 procedures are being governed by administrative arrangement to ensure that they are in accordance with the "spirit of Franks". So much for explanation of that point.
Another query has been whether a corps of inspectors should be placed under the control of the Lord Chancellor. Some regret has been expressed that the Bill does not give effect to Recommendation 70 of the Franks Report, that the main body of inspectors in England and Wales should be placed under the control of the Lord Chancellor. I explained, in the course of my speech in October last, the Government's views on this question. We fully understand the wish of hon. Members that the inspectors should be assured of sufficient independence to do their difficult task, backed by the complete confidence of the public.
Thus, the inspectors will be appointed only with the approval of the Lord Chancellor, and they will not be able to be dismissed without his consent. Moreover, the publication of the inspectors' reports is the real safeguard that their objectivity—which is what hon. Members want to ensure—may not be whole and convincing.
My right hon. Friends chiefly concerned and with whom I have been in consultation, the Minister of Housing and Local Government, and the Minister of Power, are fully aware of the desirability of assuring both the independence and the integrity of the inspectorate. However, my right hon. Friend the Minister of Housing and Local Government reminds me that he has no fewer than 100 inspectors and 6,000 inquiries a year. The inspectors must, therefore, work in the closest contact with his Ministry. Otherwise, the delays which might result would render justice difficult to ensure.
With that important point, I have put the matter as simply as I can. We are quite ready to listen to what hon. Members say on this subject in the course of the debate, but, at the same time, we must ask hon. Members to realise the importance of ensuring the efficient conduct of business, which, in itself, is of the greatest importance to members of the public.
Another query which has been put to me is whether the Bill should not incorporate the principle that the Minister 1614 can prescribe a private hearing instead of a public inquiry only for special reasons. In fact, this is already the practice. To make it statutory and effective would require the special reasons to be laid down. In any case, it is often the citizen who wants a private hearing and who regards it as less cumbersome than an inquiry. This is typical of the sort of question on which we shall welcome the views of the Council on Tribunals, when it is set up, and I can assure the House that it will be among the first matters referred to the Council.
The Bill is alleged to ignore the recommendations for appeals on fact, law and merits to higher tribunals, which is especially important for rent tribunals and Industrial Injuries tribunals. The Franks Committee's Recommendation 25 allowed for variations to suit different circumstances. Thus where a tribunal of first instance is already strong and well qualified—the Lands Tribunal, for example, has a former Chief Justice of Palestine as its chairman—there is no need for an appellate body. These variations are best considered in detail by the Council on Tribunals and this question will also be referred to the Council.
I have tried shortly to summarise the main points in the Bill, which is of considerable constitutional significance, although in itself not a very large Measure. I conclude with a few observations on the wider background of the Bill and the Report on which it is based.
A century ago, even fifty years ago, the State interfered very little or came very little into most peoples' lives. The ordinary man went about his business in his own way, relying, in a dispute with his neighbours, on the ultimate protection of the law of the land and the impartiality of the courts. Now, for good or ill, the State to a very much larger extent regulates the lives of most people in varying degrees. Ministers of the Crown and civil servants exercising their Minister's authority have wide powers to curtail individual liberty.
Liberties which have long been cherished—for example, freedom for a man to do what he likes with his land—have been curtailed in the wider interests of the community. I do not say that that is wrong. What is wrong is that the judicial system—the counts of law, tribunals and inquiries—has not been adapted and extended so as to 1615 guarantee full protection to the interests of the individual.
The zeal for State control and planning has tilted the scales in favour of the State and against the individual citizen. We are now restoring the balance. The Bill may in some ways be complicated, but the idea behind it is very simple: to protect the individual against the arbitrary exercise of the growing powers of the State.
We shall look back on this legislation and its history with great satisfaction. The war gave many of us the first insight into what it means to have our lives fully controlled and regulated by the State. That may have been tolerable in time of war, but many people found it intolerable in the years that followed. In a policy statement which we on this side of the House issued in 1955, we made a categoric statement. This is what we said:We are determined that, in exercising the normal powers of Government in a modern State, a just balance should be struck, and seen to be struck, between the interests of the individual and those of the community … the public has a right to be assured on these matters. We shall therefore appoint a strong Advisory Committee … to give practical attention to these problems of administrative law and recommend action.That statement was issued only three years ago, and I think that the House will agree that we have gone a very long way in those three years towards restoring to the individual citizen the protection to which he has always been and must always be entitled.
§ 4.29 p.m.
§ Sir Frank Soskice (Newport)
The Lord Privy Seal said that the classic approach to the opening of a Second Reading debate on a Bill required that he should take certain steps—which he did. It equally requires that, in replying, I should express to him the thanks of the Opposition for explaining its objectives. But that is not the only reason why I express our thanks. We would probably all agree that the right hon. Gentleman very clearly told us what the Government's views were over a very wide range of details. I will not attempt to follow him into the many matters of detail with which he dealt. In answering him, I should like to concentrate upon what I conceive to be the main features of the Bill.
1616 The right hon. Gentleman described it as a very human Bill, and I entirely agree. Incidentally, I notice that in the other place the Lord Chancellor referred to the fact that the gestation period of the Bill was about nine months. That is one feature in which, perhaps, it follows the human pattern, and we are very glad that it does. The Report of the Franks Committee was published in August, 1957, and we are glad that we now have, in July, 1958, at any rate this legislative instalment, designed to give it effect.
The Lord Privy Seal said that one of the steps which the Government have taken to implement the recommendations of the Franks Committee Report was to be found in the Agriculture Bill which is now before Parliament. If that is really an example of what the Government propose to do to give effect to this extremely valuable Report it is deplorable in the extreme. I do not suppose that the House has had to consider for a very long time a Measure which is so disastrous in its effect. If the Government are to go about these recommendations simply by scrapping the tribunals with which they are concerned, I cannot congratulate them. That Bill is destroying the whole procedure which was so delicately incorported in the Agriculture Act, 1947.
The Lord Privy Seal says that what the Government have done by that Bill is to transfer to the agricultural tribunal the judicial function of the executive committees. I should have thought that that was a very one-sided account. What it has done is to take away all judicial functions from executive committees and, in particular, the most valuable ones relating to supervision and other similar orders. I make that comment in passing, because in the Bill, not following the very bad example of the Agriculture Bill, the Government have taken a step in the right direction.
As the right hon. Gentleman pointed out, the central feature of the Bill is the establishment of the Council. Naturally, a great deal of the working of the Bill hinges upon the existence of the Council, and I want to spend a little time looking in rather more detail at the framework of the Bill, to see how the Government have gone about the task of setting up that Council. I realise that they have followed fairly closely—not entirely—the recommendations of the Franks Committee with regard to the duties to be 1617 discharged by the Council. They have placed upon the Council a duty to keep under continuous review the tribunals which form the subject matter of Part I of the Franks Report—that it is say, the courts other than those which we regard as courts in the ordinary sense.
When, the right hon. and learned Gentleman has finished his conversation with the Lord Privy Seal I should like to have his attention—although it is not essential.
§ Mr. R. A. Butler
I have been commenting upon the clarity of the right hon. and learned Gentleman's exposition.
§ Sir F. Soskice
I am, naturally, gratified to hear that. I hope that the Lord Privy Seal will forgive me if I say that although I accept at once everything that he says in all respects, I wonder whether he is not slightly over-painting the picture. However, perhaps I may now try to proceed upon the footing which commends itself to the two Ministers who were engaged in such deep conversation.
What I was saying, or trying to say, was that the Franks Report draws a radical distinction between two questions. The first part of the Report deals with tribunals—tribunals in the sense of their being courts other than the ordinary courts to which we refer when we speak of courts of law—and the second part deals with what was entirely distinct in the concept of the Franks Committee, namely, those administrative procedures which involved inquiries by a Minister or the hearing of appeals by a Minister. The Committee markedly divided its recommendations into two separate categories.
Recommendations 1 to 65 deal with what I may perhaps compendiously call tribunals, and the remainder—Recommendations 66 to 95—deal with the administrative procedures, if I may so describe them. I should have thought that for most people those administrative procedures occasion more anxiety than the tribunals. We should want to examine the administrative procedures more carefully than the tribunals—although I accept what the Lord Privy Seal says, and I am sure that the House will agree, that the tribunals vitally affect the lives of millions of our ordinary people.
1618 If we consider how the Government have divided the functions of this Council as between the tribunals and the procedures, we find that they have said that the Council is to keep the tribunals under continuous review. It is to act as what the Lord Privy Seal called a bloodhound—not even a watchdog. It has continuously to keep under observation what takes place before these tribunals. That is one very separate and distinct function which the Council is to discharge.
The other function is simply to report when matters are referred to it by the Lord Chancellor and Lord President of the Court of Session. That is to say, it has to wait until something is brought before it by the Lord Chancellor or the Lord President, and when it has considered those matters it is to express its opinion upon them. That is a very limited function. It is nothing like as exacting and rigorous as the function of constantly watching the procedures of tribunals.
§ The Attorney-General (Sir Reginald Manningham-Buller)
The right hon. and learned Gentleman will not have failed to observe that, with regard to administrative procedures, under Clause 1 (1, c) the Council is to make the subject of its inquiry matters which it may determine to be of special importance.
§ Sir F. Soskice
I most certainly observed that, and I was going to say something about the very odd procedure of the Government in waiting until they were pressed heavily by noble Lords in another place before introducing that provision. When the Bill was introduced in another place, all that Clause 1 contained was paragraphs (a) and (b). All the administrative procedures, which are really more important from the point of view of the Committee's recommendations than tribunals, were sandwiched into paragraph (b). The Council was expected to wait until it was asked a question and then to decide whether or not it should make a report on it. That was a very limited function.
When he was pressed about this matter in the other place, the Lord Chancellor, after some hesitation, introduced an Amendment which did not make very much difference. It said that with regard to these procedures, if the Council, on its own motion, thought that something was particularly important—I believe that the Lord Privy Seal said, 1619 and the phrase used by a noble Lord in another place was "a crying scandal"—it could take upon itself the onus of making a recommendation upon it.
The fact remains that the function of the Council with regard to administrative procedures is an extremely limited one. I should like to know from the Attorney-General why it was that the Government went about the matter in that curiously tortuous way. Why was it necessary for the Lord Chancellor to be pressed in the other place before he would even make the very limited concession which now appears through the introduction of Clause 1 (1, c)?
I would emphasise that it is apparent throughout the findings of the Franks Report that whereas it is comparatively satisfied—except on minor details—with the workings of the tribunals, its main attention was directed to the administrative procedures. If hon. Members will look at paragraphs 262 onwards they will see that the Franks Committee addressed itself to the major question which is in front of each of us—the question whether these procedures should be regarded as judicial or administrative. The Committee came to the conclusion, as it was bound to do, that they were both, to some extent.
Where the line should be drawn between the Minister's discretion and the rights of the individual is a question which must pose itself in regard to a very great number of relationships in a modern State. Clearly, the private interest of the citizen must over and over again come into collision with the general public interest. I am sure that the Lord Privy Seal and the Attorney-General would agree that those who are concerned with the welfare of the community and with the rights of the individual will agree that the difficulty is to draw the line accurately so as to give to each its proper sphere.
The Lord Privy Seal said that his party has taken the initiative in this matter. Certainly, it set up the Franks Committee. The right hon. Gentleman also quoted from de Tocqueville and Blackstone, both great authorities. I myself would quote, I hope, without undue lack of modesty, from a notable authority on this matter, the Labour Party pamphlet, 1620 "Personal Freedom". [HON. MEMBERS: "Oh."] It is a very short and very excellent publication. I am sorry to disagree with Government supporters on this point. [Interruption.] The hon. Member for Isle of Thanet (Mr. Rees-Davies) cannot have read the pamphlet, which seams to have afforded a considerable amount of inspiration to the Franks Committee.
I will follow the Lord Privy Seal in quoting. On page 25 the pamphlet deals with the whole problem which arises out of these administrative procedures. What we have said as a party, and what we firmly believe, is set out in this pamphlet, with which the Franks Committee very greatly agreed and on which it very largely based itself. It says:It is sometimes thought that the officer conducting such an inquiry is a kind of judge who has power to decide between, the parties concerned. In fact, he is normally an official of the Ministry, who merely records the evidence and conveys it to the Minister, together with his recommendations. It is the Minister who decides.The nature of the inspector's report, and his recommendations are secret. The evidence may not have been fully understood or taken into account either by him or by the Minister who need not give reasons for his decisions. There is some justifiable disquiet about this procedure, especially in development or planning disputes.There are cases in which a different procedure should be introduced. The person holding the inquiry should be appointed by the Lord Chancellor and not as at present, by the Minister whose Department is involved. The inspector's report should be made available to all the parties who appeared at the inquiry, but unless there are good reasons for doing so his actual recommendation to the Minister need not be published. On the other hand, the Minister should always give reasons for his decision following an inquiry. It is suggested that such reforms as these will ensure that to an impartial observer justice is seen to be done, even though few parties to a dispute will ever feel that the decision is fair if it has gone against them.The reasoning, and I would say that the language, of that paragraph is in every way comparable to and perhaps superior to de Tocqueville and Blackstone. [Laughter.] I am surprised that Government supporters do not agree with that. I thought they would give universal assent to it. I am sorry if there are differences of opinion on that point, but it is not a major point arising out of the Bill. The pamphlet puts into a nutshell exactly the anxieties of the Franks Committee and of persons who are concerning themselves 1621 with these matters and the Committee accepted that indication.
The Council has an extremely limited function in respect of these administrative inquiries. Although I am conscious of the fact that the Franks Committee did not recommend that the Council's function should extend beyond this limited scope, I would ask the Government whether they think that this is the right way to deal with it. Do they not think that if the Council is to be given watchdog functions at all it should embrace within the scope of its functions, at least in part, the procedures of these various administrative inquiries. I would put that as my first question and I would like an answer from the Government.
I would like also to ask the Government whether they have given consideration to what is involved in this matter of keeping tribunals under continuous review. "Keep them under continuous review" is a phrase which has an exacting quality about it. I would ask the Attorney-General whether the Government have any intention, for example, with regard to the staff the Council is to have. We gather from the Bill that here are to be between 10 and 15 people appointed. There will be power to pay the chairman a salary and to pay the members, apart from the chairman, fees and, I think, expenses. I should think that that is right and proper. If one is to attract the right sort of person to undertake this very important function some inducement must be held out to them, or at least they must be put in such a position that they do not actually suffer loss.
I would like to know from the right hon. Gentleman what the Government propose? Have they considered a salary scale? Is the Council to have an office and secretarial assistance? When they speak of keeping the proceedings of tribunals under continuous review, what would be the method? Does it mean constant attendance at tribunals to see how they are functioning or simply a part-time job waiting for someone to come and tell the Council something about the matter? This would not be a very effective manner of keeping the proceedings under review. If the phrase is to be understood in its full sense the members of the Council would be expected, I suppose, to go round the country spending 1622 considerable time watching what happens before these tribunals to see where the shoe pinches and whether all goes well or goes ill.
I would, therefore, like the Attorney-General to say whether it is intended that the members of the Council should be full-time and have a full-time appointment. The terms of their appointment are to be worked out by the Lord Chancellor. What is contemplated here? There are two very different possibilities. Either nothing more than lip service is paid to the obligation to keep tribunals under perpetual review and the Council will meet once a month or once every three months to hear whether anything has happened; or, if the words are understood in their full meaning, it will mean members of the Council going round familiarising themselves by actual contact and observation with what takes place before the various tribunals.
Are the Attorney-General and the Lord Privy Seal giving consideration to the sort of people who are to be appointed? If the members are adequately to discharge their task they must be people with legal experience, able to say whether a particular proceeding conforms with ordinary concepts of just procedure as practised in our courts. Equally, they must be people with a very considerable social understanding. They must understand to what extent a person who is in need of National Assistance can be expected to go before strangers, especially in public, and indicate the nature of their intimate needs. All these matters they should be able to weigh up. Equally, they should be able to look at matters from the point of view of a Minister who is running a great Department and who has to dispose of a very large amount of public money.
Therefore, the point I put to the Minister in charge of the Bill is absolutely indispensable. What do the Government mean by the "Council" to which the Bill refers? What sort of people are to man it? Is it to be full-time or part-time and, roughly speaking, how is it to carry out its duties and what is expected of it. It is no good saying that that could be left to the Council's interpretation of the words in the Bill. Surely we must be given some idea what the Government want these people to do, and whether their functions are limited 1623 to watching tribunals or are to include some wider responsibility, as we suggest, in respect of administrative procedures.
That is the first question I wish to ask the Attorney-General to answer. I must confess that I shall be extremely disappointed if the effect of his answer is that the Government have not really thought about that. It is so easy to write in a Bill that one is to establish a council and then to put in a few phrases about it without having thought how the proposal is to be implemented. If the Bill is to be an empty shell, the Government will have gone far to betray the great pains and labour which the Franks Committee has put into its work to provide safeguards for the citizen and the community in these difficult and delicate matters.
That hinges closely on another question. Why have the Government departed from the recommendation that there should be separate Scottish and English Councils? In his speech, the Lord Privy Seal said the reason was that the procedure covering tribunals was common throughout Great Britain. That obviously is a consideration and I do not necessarily think the Government have taken a wrong view here; I simply ask for information.
I do not think that the answer of the Lord Privy Seal was quite adequate. If the Council is to be active in its process of watch doggery—if that is a right phrase to use—would it not be more convenient to have a separate body sitting say in Edinburgh, and another body in Wales or England, I do not know which? Would that not be much more convenient than this kind of hybrid body with a special committee concerned with Scotland, if it is supposed to perambulate throughout the three countries, England, Wales and Scotland seeing how tribunals discharge their functions?
I cannot help suspecting that possibly one reason which led to the departure from the recommendation of the Franks Committee was that the Government were not taking seriously the question of keeping the tribunals under continuous review. I should have thought the words of the Franks Committee Report on that recommendation in paragraph 43 should 1624 have been considered. That paragraph says:Our most important recommendation …I stress the words, "our most important recommendation"—… is that two standing councils, one for England and Wales and one for Scotland, should be set up to keep the constitution and working of tribunals under continuous review.One would have thought they would have those sort of considerations in mind. If one looks at the speech of the noble Lord, Lord Silkin, in another place, it would seem that he, being a member of the Franks Committee in deciding with the Committee that there should be two Councils, was very much pressed by the kind of consideration I have been urging on the Government, that the function would be far more effective if there were two bodies rather than one body.
That is the central feature of the Bill. I do not think that we should pass from it without remembering what is not in the Bill. It is, I think, in order, on Second Reading, to point to areas of exploration which are not touched upon by the Bill. As the Lord Privy Seal has said, a complicated and developing society is bound to pose innumerable questions which arise out of the conflict between the interest of the individual and the requirements of the general good. They have arisen in innumerable contexts which were not within the terms of reference of the Franks Committee. We should not, however, be over-complacent about the Bill forgetting that there is a very large area of difficulty which the Bill has not in any way approached and which was not approached by the Franks Committee because it was not within the Committee's terms of reference.
There is all the area relating to security and political unreliability which affects people's employment. I know that a great deal of thought has been given to that matter both by the Labour Government and the present Government but I should have thought that none of us would say that we had reached the ideal solution. I refer to that as a kind of problem which is analogous to the kind of problem we are dealing with in this Bill. There are many others.
One of my hon. Friends has referred me to the situation, for example, of a person wanting to leave the kingdom. He cannot be stopped by law except by the 1625 issue of a writ of ne exeat regno, which is not often used, but, if the Foreign Office chooses to refuse a passport, which it can do in its absolutely untramelled discretion, except the risk of a Question being asked in this House, that man could be effectively stopped from going abroad. This has, I think, recently been a matter in controversy before the Supreme Court of the United States. That is another question of the sort which at some time or other this House may have to consider. I do not ask that the Government should consider it in this Bill, but many hon. Members may wish to refer to that unexplored tract of territory.
I notice that in the proviso to Clause 10 (1) the Government exclude from the provisions relating to removal of proceedings to the High Court by the procedure of certiorari, or by mandamus, Section 26 of the British Nationality Act, 1948. That was an Act for which the Labour Government were responsible and that is a Section under which the Minister can decide a doubtful question whether a person is or is not a British subject. I refer to that as the sort of case which might come into point. When the Labour Government were in office they took the view that this matter fell within the administrative discretion of the Minister rather than that it was one which called for judicial inquiry.
I simply cite those as matters which have not yet been dealt with. I daresay that the view taken by the Government at that time was perfectly right. I do not say that it is wrong, but it is the kind of problem which must arise as our society continues to evolve. Sometimes one uses the words "Crichel Down". I need only use that name again to refer to another vast territory which, at some time or other, may need the attention of this House. Once again, I do not suggest that it should be done under the provisions of the Bill and it certainly was not done by the Franks Committee because it was not within its terms of reference.
But I wish to ask the Government what they propose to do with some of the recommendations which have not yet been dealt with in any legislation, but which, I think, are extremely important. The Franks Committee, in paragraph 82, referred to the question of witnesses before tribunals having absolute privilege. At the moment, they have qualified privilege. 1626 I think that any lawyer Member of this House will probably agree with me in thinking that the value of that defence is limited. It can always be defeated by a successful assertion of malice and malice can be urged and do great harm to a person against whom it is urged even if it is successfully rebutted by him and shown to be based on inadequate grounds when the matter comes before the court. Therefore, I should have thought that there was a really important distinction between absolute privilege and qualified privilege which is the privilege enjoyed by witnesses before a great many of these tribunals as, indeed, it is the privilege enjoyed by members of Local authorities, and so on. We in this House have absolute parliamentary privilege, although there is some room for doubt at the moment about the exact extent to which that goes.
Another matter on which I should like to have the views of the Government is the question of legal aid. I notice that the Lord President of the Council, in another place, when it was pointed out that the Government had not yet implemented the recommendation in paragraph 89 of the Report that legal aid should be afforded to people appearing before tribunals, said that could not be done at the moment, when legal aid had not yet been extended to persons who sought advice and was still not available in a number of criminal cases or before courts of summary jurisdiction. I notice that since the Lord President made that statement the Government have announced a scheme for extending legal aid to the furnishing of legal advice. It seems that, at any rate, one of the objections which were posed by the Lord President is got out of the way by that.
I should now like shortly to ask the Government something about their proposals in Clause 3, which deals with the appointment of the chairmen and members of tribunals. What the Government propose there is the setting up of panels for which the Lord Chancellor or the Lord President of the Court of Session should be responsible. The Franks Committee was quite definite in its recommendation that the Lord Chancellor should actually appoint the chairmen of the tribunals and that the members of the tribunals should be appointed by the Council which the Government are setting up under this Bill.
1627 The presidents of some tribunals are appointed, under the terms of the Bill, by the Lord Chancellor, to a very limited extent under the Mines and Quarries Act, 1954. Clause 3 deals only with some of the tribunals which are listed in the Schedule at the end of the Bill. Broadly speaking, it relates to National Assistance, National Insurance, National Insurance Industrial Injuries and some National Service tribunals. I should like to ask the Attorney-General what the Government think is to be gained by jettisoning the proposal that the Lord Chancellor should himself appoint the chairmen, substituting instead the appointment of panels. I do not quite see what advantage there is in that.
I can understand that there may well be administrative difficulties which make it difficult for the Lord Chancellor to undertake the appointment of chairmen. This is a matter which probably hon. Members will wish to explore further in Committee. I do not see why, if he cannot appoint a chairman, he should appoint the members of a panel. No doubt there is some reason, but I should like to hear from the Government exactly what it is.
The Government intend to depart entirely from the proposal that the Council should appoint the members of the Committee. Those, I understand, are to be appointed as they are appointed at present, subject to the one qualification in Clause 4 (1) of the Bill which provides that the appropriate Minister is "to have regard to" the advice of the Council in making the appointment of members.
I should like to ask the Attorney-General a question which may, at first sight, seem simple but which, when one comes to look at it, is very far from simple—what he understands by the meaning of the phrase "have regard to". Is the Minister to follow their advice or simply to take it into account, and can he do exactly the opposite to what the Council advises him to do in the matter of the appointment of members? I should like to know the Attorney-General's view about that. It is one of those phrases which Law Officers, of all complexions—I do not blame him, because I speak with a guilty conscience myself—and parliamentary counsel always use, and I am never quite sure whether we know what it means. I always wonder whether it means we have to have regard to Some-one's 1628 advice or recommendation and whether then, having had regard to it, we may do exactly the opposite to what the recommendation says.
Some people think that one may have to read, or listen to the advice and take it into account, ponder it, and then throw it overboard. I should like to know what it does mean, because it figures in a crucial place in this Bill. It relates to the composition of the whole of the membership of these various bodies. I want to know why they have used this ambiguous phrase. I want to know what it means. One final question: is it not a little invidious for the Lord President of the Court of Session, who is not in the position of a Minister answerable to either House of Parliament, to have to undertake the function which he will in the matter of these various appointments? Would it not be preferable that the Lord Advocate for Scotland should undertake this function, he being a Minister who can be questioned in this House with the usual penetrating questions to which all Ministers have to be subjected?
I want to say a word about Clause 8. I have referred to what I think are by far the most important Clauses in the Bill, but there are other Clauses of great importance as well. I am sure that the Attorney-General has read the speech of Lord Denning in another place. Lord Denning on Second Reading, on 1st April, 1958, as reported in c. 603–4 of HANSARD, referred to the fact that in the case of a number of appeals, as they are listed in Clause 8 (1) of the Bill, the appeal can go no further than the Court of Session or the Court of Appeal in England, and that there may develop a divergence of views between English and Scottish courts.
As Lord Denning said, that may be extremely unfortunate, and he had had personal experience of that when trying war pensions appeal cases. What the noble Lord suggests, in these circumstances, is that the appeal may lie direct from the tribunal to the Court of Session, or the Court of Appeal and there may lie a further appeal, by leave, from those courts to the House of Lords in order that a divergence of view between the Scottish and English courts might be reconciled in an appeal on which learned Lords from both countries may sit. I should like to know the Government's views on that proposal. I am not saying that I support 1629 it, but it is obviously the view of a highly respected authority, and I should like to know whether the Government have considered it.
Clause 10—I again refer to Lord Denning—is the Clause which, I think, to everyone's gratification, puts an end to many provisions which say that the proceedings of tribunals are not to be open to review by using procedure by way of certiorari or mandamus. As Lord Denning points out in the same speech in another place, that Clause is not in itself adequate without another Clause enjoining on those who deliver the decision of the tribunal to give their reasons; because, as his Lordship points out, in certiorari procedure the court cannot interfere unless the decision is shown to be one which is bad for reasons which it contains on the face of it. I should like to ask the Government what their views are about that.
I apologise to the House for taking time, but it is difficult to go into many aspects of this complicated Bill without taking some time. I should like to conclude by saying, speaking for myself and, I think my right hon. and hon. Friends, that we very much welcome the Bill. We think that so far as it goes it is a good Bill, subject to these various questions which I have put with regard to departure from the Franks Committee's Report, and subject to the major questions as to the attitude of the Council in the discharge of its duties and the composition and terms upon which it is to work.
I am glad that the Bill is making its appearance. I was a little surprised and disappointed that the Lord Privy Seal, while paying a tribute to the Franks Committee, in which we all join, did not also express his debt of gratitude to the authors of "Personal Freedom", from which I quoted. I feel sure that that was an entirely unintentional omission on his part, and I am sure that I have his authority to rectify the omission.
I greatly hope that the House will agree to give the Bill a Second Reading.
§ 5.9 p.m.
§ Mr. Peter Rawlinson (Epsom)
As we all know, such was the clarity of expression of the right hon. and learned Member for Newport (Sir F. Soskice) that he drove my right hon. Friend the Lord Privy Seal and the Attorney-General to louder 1630 and longer whispers, and if anyone had been within whispering range of myself I, too, would have whispered my appreciation of the clarity of his expression. While we like his expression we cannot quite accept the political sincerity which lay behind some of the premises with which he addressed the House this afternoon. We have too long a memory of statements coming from some of the right hon. and learned Gentleman's right hon. and Iron. Friends about "the man in White-hall" knowing best, and we also recollect that he, for five or six years, was a member of the Government by whom the balance between the interests of the individual and those of the State were not always maintained.
The right hon. and learned Gentleman asked us to remember the words in an article in his pamphlet on personal freedom and compared it with the noble words of de Tocqueville and Blackstone. Blackstone wrote his commentaries to the accompaniment of a bottle of port. I can only think that the Socialist who wrote the pamphlet must have done so on some very heady champagne, for which he will some day be called to account by his friends.
I welcome the Bill, which is of extreme importance. As to my only objection to it—I hope this is not churlish—I wish the Government had introduced the Measure in 1953 after having set up the Franks Committee in 1952, for this is a matter which gravely affects, and has gravely affected, an enormous number of citizens. In the last two decades we have seen the growth of the conflict between the State and the individual so that the individual no longer rests on his own rights of common law and statutes, but there was this new interference with his liberty which threatened him in matters of his life and livelihood very gravely and to his great concern.
The Franks Report said that openness, fairness and impartiality were the three great elements and that they had not been manifested as fully as possible. Those were the dry words of a Committee. I should have thought that very much graver expression would have been given to them throughout the country. There has been, indeed, general disquiet, and there still remains a fear of the administrative outlook.
1631 The inconvenience of the individual who is querying and questioning is common to all administrations and all members of administrations—in effect, it is the trouble that can be made for a Government Department. Therefore, while it is understandable that cranks, who are continually pestering, and other determined persons must eventually be dealt with, there was general public disquiet that these tribunals and the laws governing the subject—or the absence of law—did not give fairness to the individual.
To the general public an inquiry is a trial. It is a court. The view of the citizen is that the issue is being tried by the person sitting there in the inquiry, in most cases the inspector. As the Franks Committee said in paragraph 40:… tribunals should properly be regarded as machinery provided by Parliament for adjudication rather than as part of the machinery of administration.That is, adjudication or judging.
In any judging or trial the procedure is of immense importance. I was glad to hear the Home Secretary speak of referring to the councils the codes of procedure and, on their advice, putting them into statutory form I should like to see the codes in statutory form, for I do not have confidence in circulars. Like some of my hon. Friends, I distrust future administrations. In this House we ought all to appreciate the importance of procedure. The procedure of the House is complicated and complex, so much so that some hon. Members do not understand it and many people outside are completely bewildered by it. However, the procedure is designed to bring about a proper amount of fair debate between hon. Members. In courts of law the procedures and the rules of evidence are important in safeguarding the interests of the parties so that the issues can be fairly presented and evidence kept within reasonable limits and a decision propertly arrived at at the end of the day.
My second point concerns the appointment of the inspectors. I know that the Attorney-General is aware of my view, which is that I wholeheartedly agree with the right hon. and learned Gentleman the Member for Newport in the comments that he had to make. I believe 1632 most emphatically that the inspectors should be appointed by the Lord Chancellor. I know the position is that they cannot be appointed or dismissed except with his consent. Nevertheless, it is vitally important for justice to be seen to be done and for the inspectors to be the Lord Chancellor's inspectors and not the Minister's inspectors. Consequently, the inspectors should be appointed and dismissed by the Lord Chancellor.
The Lord Chancellor is responsible for a great many appointments for judicial office. I should have thought that it was not beyond the bounds of possibility for him to make these appointments. It has been suggested that inspectors should be allocated to Ministries and that the Ministries should carry out their work as inspectors. It is unfair to an inspector in such circumstances to send him to an inquiry. Anyone who has appeared professionally at such an inquiry knows the heat that is engendered.
While I am not for a moment suggesting that many, or most, or even a large proportion of the inspectors do not conduct themselves judicially, they are nevertheless officers of the Minister, and they have not got, except by the experience which they acquire, training in acting judicially. I should like to see the inspectors clearly held out to the parties appearing before them as the Lord Chancellor's inspectors. The view of the citizen at the moment is that it is purely a matter of blowing off steam before an officer of the Minister who has been sent down to let them have an opportunity to have their say while the Minister has reserved to himself and to his own mind exactly what he will eventually do.
I welcome what has been done about the publication of decisions. All these matters should be open. I should like to see written into the Bill the right of the Press to be present, except on special occasions. Justice should with few and important exceptions be public and open. There are times when in the interest of the accused it is right that the proceedings in courts should be in camera—such as proceedings under the Official Secrets Act, certain interlocutory proceedings, and certain proceedings where children are concerned—but generally it should be written into the Bill that the Press have the right to be present.
1633 As lawyers, we recollect that the development in many ways of the procedure and propriety of our courts was to a great extent due to the Press. Montague Williams, the famous advocate of the nineteenth century, used to talk of the conduct of the judges at the Central Criminal Court after dining, as they then did in the middle of the day, only too well with very large goblets of port, and he described what an impression that made on the spectator of justice not being seen to be done.
I think that the growing up of the Press helped the courts and assisted in making the law and the administration of justice in this country what it is today. Whatever some hon. Members may think, it is the real and perhaps the main object of admiration in the life of our country.
The discipline of the appellate tribunal is of the greatest importance. The fact that there is an appellate tribunal over any court always helps with the proper administration of justice. Whether one sits as an arbitrator, a magistrate, or other judge, the fact that there is an appellate tribunal brings to the lower court a very much more careful and proper sense of sanction than if there is no appellate tribunal.
I should like to see an appeal on fact and law, and on fact and merit alone. Public criticism of the law of contempt, under which the courts can punish for contempt, is due to the fact that there is no appeal from this absolute power. The criticism of us in Parliament is due to the fact that we are the judges of ourselves. Let none of us forget the amount of criticism which is directed to us here in this place.
In conclusion, I want to convey my congratulations to the Ministers who have brought forward this Bill and have acted so promptly after the Franks Report. I should have like that Committee to have met earlier, because I think this is one of the most cardinal and important Bills which a Government elected by a Conservative majority could bring before this House. I only hope, however, that the good will not be the enemy of the best. I believe there are many important improvements which can be made in the Bill. Nevertheless, I am glad to be able to support it here because if justice is secret or casual, the individual will ultimately suffer. In the end secret 1634 and casual tribunals bring justice into contempt.
§ 5.22 p.m.
§ Mr. Dingle Foot (Ipswich)
I join with the hon. Member for Epsom (Mr. Rawlinson) and, indeed, with hon. Members in all parts of the House in welcoming both this Bill and the manner in which it has been introduced by the Lord Privy Seal. In my view, it embodies certain changes in the law which have been long overdue.
Personally, I attach great importance to Clause 8 which establishes a right of appeal from the tribunals to the High Court of Justice, and also to Clause 10 which re-establishes in the fullest possible form the supervisory jurisdiction of the High Court over all tribunals. These follow the recommendations of the Franks Report, but I think it is worth recalling that there was nothing new about the Franks Report. Both these recommendations and a good many others with reference, for example, to the publication of inspectors' report, will be found almost equally fully set out in the Report of the Committee on Ministers' Powers which was published in 1932.
I would say in passing both to the Lord Privy Seal and to the hon. Member for Epsom that they should not preen themselves too much because this Bill is being introduced in 1958. The Government could have introduced it in 1932, which is the date when the Committee on Ministers' Powers reported. They had seven years from 1932 until 1939 when they were constantly being asked from the Opposition benches what was their attitude towards the recommendations of the Committee, and we were never able to obtain any satisfactory answer. I can only say that I am glad that after all these years, after a lapse of rather more than a quarter of a century, these recommendations are at last being implemented.
However that may be, it seems to me that the Report of the Franks Committee and the Bill mark an extremely important development in our law. For at least thirty years there has been incessant controversy about the place of the tribunals in our juridical system and a great many people at one time or another have been inclined to be jealous of the tribunals because it was thought that they might encroach on the proper functions 1635 of courts of law. It seems to me that the effect of the Franks Report and of this Bill is that we are really assimilating the tribunals into the general pattern of the courts.
There is a very significant passage on page 9 of the Franks Report where the Committee rejects the view, put forward by the Departments, thattribunals should properly be regarded as part of the machinery of administration, for which the Government must retain a close and continuing responsibility.The Committee says:We do not accept this view. We consider that tribunals should properly be regarded as machinery provided by Parliament for adjudication rather than as part of the machinery of administration.That means, I take it, that in future the function of the tribunals, like the function of Her Majesty's judges, is not to act as instruments of Departmental policy but is to stand between the citizen and the Executive.
So much for the contents of the Bill. We shall, of course, have detailed criticisms to make in Committee. Personally, I hope that we shall devote some attention to the proviso to Clause 10 which refers to Sections 25 and 26 of the British Nationality Act, because I should have thought that the determination as to whether somebody is or is not a British citizen is eminently a justiciable matter which ought to be decided by a court and not by a Minister.
I want to come to the omissions in the Bill. We have been promised that there will be legislation to implement the remainder of the Franks Report. That is the part dealing with inspectors' reports and publication and the giving of reasons by the Minister. I wholly agree with what has been said by the hon. Member for Epsom about Ministerial circulars. I do not think we ought to be satisfied with circulars. We want to have those recommendations in the Franks Report embodied in legislation just as much as the recommendations to do with tribunals.
I should like to know from whoever is to reply for the Government when we may expect the further legislation. We are told that we must await the recommendation of the Council, and, of course, it may be some months or a year or two before that recommendation is made. 1636 But could we have some assurance from the Government that when they do receive the recommendation of the Council they intend to act with reasonable dispatch and that this matter will not be allowed to hang over year after year like the recommendations of the Committee on Ministers' Powers?
There is another aspect of the matter to which I should like to refer and which was touched on by my right hon. and learned Friend the Member for Newport (Sir F. Soskice). Even if the whole Franks Report were carried out, that would by no means be the end of the legislation which we ought to have in this field. There is, as we all know, a vast area of administrative activity which is completely untouched by this legislation and, indeed, by the Report, not because the Franks Committee did not wish to deal with it—one rather gathered from the language used by the Committee that it would have liked to do so—but because the Committee was precluded from dealing with it by the terms of reference.
As has often been pointed out, if we take the case of Crichel Down, that did not come within the terms of reference of the Franks Committee, and certainly if there were another Crichel Down no sort of protection would be afforded to anyone by the provisions of this Bill. It seems to me that this is a matter which ought to be the particular concern of every Member of this House because here in this House we are constantly being reminded, almost every day, of the extent to which the private citizen is at the mercy of the anonymous bureaucrat.
I am thinking of the class of case where the decision is left to the unfettered discretion of the Minister or the authority concerned. There we know that there is practically no judicial protection. One sometimes attempts to challenge in the courts the exercise of discretion by the Minister but it is impossible to take the matter any further unless bad faith can be established, and that is something which in 999 cases out of 1,000 is practically impossible to do.
The other form of protection which the citizen is supposed to have is the protection which is afforded by this House. We are told that Ministers are responsible to the House for what they do and can always be challenged here. 1637 We ought to be honest about this. Every one of us knows that that, nowadays, is an extremely inadequate safeguard in most cases of individual grievance.
Of course, it happens from time to time that there is some instance which attracts widespread public attention, something which interests hon. Members in all parts of the House, and then one may be able to generate such feeling that the matter is seriously considered, and, eventually, the Minister may give way. But those cases are very rare indeed. In the majority of cases in which individual grievances are raised at Question Time on the Floor of the House, it is very easy for the Minister to give a stonewalling reply.
I will remind hon. Members of one example which took place in the House a few days ago. My hon. Friend the Member for Wednesbury (Mr. Stonehouse) raised the case of an internee on Manda Island in Kenya Colony, a man who was personally known to five or six Members of the House, all of whom took part in the Adjournment debate. This man had been interned, without any trial and without any judicial process, for five years on grounds which seemed to be very flimsy indeed. The matter was raised in the House and, as always in cases of this kind, the Minister—in this case the Secretary of State for the Colonies—took refuge behind the blank wall of Ministerial, or, on this occasion, gubernatorial discretion. Although we were able to raise the matter on the Adjournment of the House, as many other matters are raised, it availed us and it availed the man himself nothing at all.
We can all think of many examples of unfettered ministerial discretion which it is difficult, if not often impossible, to challenge in the House. My right hon. and learned Friend the Member for Newport gave the example of passports. It is a very striking contrast that, in the same week that the Supreme Court of the United States has said that the State Department has no unfettered discretion to withhold a passport from a citizen of the United States, a spokesman for the Government, speaking in another place, said that the issue of a passport here is a matter of the prerogative, something that one cannot question in any way, and, if a passport 1638 is withheld, no reasons may be given and the person concerned has no kind of redress.
Various cases have been raised with the Colonial Office at Question time—one was raised only today—of persons who are, in effect, prevented from leaving the territories in which they live. They do not know the reasons for their being so prevented, that is, for the passport being withheld, and they have no way of challenging the decision.
Another similar matter, which I am sure we shall have very seriously to consider in the House before long, is the prevention of someone wishing to go to some part of the British Commonwealth by the withholding from him of a permit to go there because he has been declared a prohibited immigrant. Here again, when the matter is raised on the Floor of the House, we are met with a stonewalling reply. We are told that it is within somebody's discretion and that no kind of reasons may be given.
I am sometimes struck by the contrast—I say this without wishing to be polemical—between the attitude of hon. Gentlemen opposite to the "gentleman in Whitehall" and their attitude to the gentlemen in some Colonial "Whitehall", in Nairobi, Blantyre, Entebbe, or wherever it may be. The gentlemen in the Colonial "Whitehall" is just as liable, to error and just as much in need of being challenged from time to time as the gentleman in Whitehall in this country.
We all know that the reasons for these decisions may be perfectly valid. On the other hand, they may not. It is possible that decisions may be taken under a misapprehension. Information upon which they are based may be mistaken information or completely false information which has been maliciously supplied. In each case, however, the person concerned has no means of knowing what is alleged against him, no means of knowing the grounds of the decision, and certainly no form of redress. I have mentioned those few examples, and I am sure that each one of us who is concerned with the practice or administration of the law can think of many other cases where there is unfettered ministerial discretion.
When we have passed the Bill and have the further legislation promised to implement the other recommendations of the Franks Report, we shall have a somewhat anomalous situation. We shall be 1639 dividing administrative activities into two parts. One part will be covered by the new legislation, that is, by the Bill and the future Bill we are promised. We shall have worked out an elaborate system of safeguards. We shall have brought in the Lord Chancellor to appoint his panel. We shall say what the qualifications of the chairman shall be. We shall provide for public hearings, for appeals and for everything else.
For the other part, the still larger part, there will be no safeguards at all. The individual will still be left at the mercy of the Department. That is why I say that we shall in future need to go a good deal further than either the Bill or the Report. It is really time that we studied the kinds of system they have in France or Sweden. I know that that is a conception strange to English lawyers, but I believe that there must eventually be some kind of administrative tribunal to which this other class of matter can be referred.
This is a very old controversy, as we all know. We can never reach any final decision in the conflict between freedom and authority, but now we hope that the balance is tilting in the direction of freedom. When Professor Robson gave evidence before the Franks Committee he quoted the words James I used when he was arraigning the judges—… as for the absolute prerogative of the Crown, that is no subject for the tongue of a lawyer, nor is it lawful to be disputed.Today, we are not concerned much with the Prerogative of the Crown, which has been eroded by centuries of legislation, but we are concerned, in effect, with the prerogative of the Departments. We live in a very highly organised society which will probably become still more highly organised. It is inevitable that we should give very wide powers to Ministers, Departments and officials. The more we do so, the more essential does it become for us constantly to build up and strengthen the safeguards which prevent those powers being exceeded or abused.
§ 5.38 p.m.
§ Mr. Philip Bell (Bolton, East)
The Report of the Franks Committee about which we are so enthusiastic contains the attractive slogan which has been referred to, "Openness, fairness and impartiality". The right hon. and learned Member for 1640 Newport (Sir F. Soskice), in his speech, very nearly achieved, openness, fairness and impartiality. He broke down a little in his melancholy comment that he had not had any compliments for the part that the pamphlet "Personal Freedom" played in informing the mind of the Franks Committee. But, of course, what he ought to have pointed out was that, in paragraph 273 of the Report, the pamphlet "The Rule of Law" was cited and, oddly enough, no reference was made to the pamphlet "Personal Freedom".
The hon and learned Member for Ipswich (Mr. Foot) referred to the delay in dealing with the Donoughmore Report, but I think it appears from paragraph 35 of the Franks Report that at least this should be said, that the matter of tribunals was not so pressing then. Paragraph 35 points out:At the time of the Donoughmore Committee … there were few kinds of tribunal (although some of them, for example the Courts of Referees under the Unemployment Insurance Acts, dealt with important issues … and the Committee was able to regard tribunals 1s somewhat exceptional".There was, at any rate, a small excuse, if not a complete excuse.
§ Mr. Bell
I shall not give way. I have an old feud with the hon. Gentleman about giving way.
I was saying that this Report is bound to get enthusiastic support from both sides of the House. Yet it is bewildering in a sense because of its detail. The Report itself contained 95 recommendations. The Bill refers to no less than 50 tribunals set up by about 45 Acts concerning 23 subjects. Five Acts have already been passed which have attempted in some way to give effect to the recommendations.
I think that the right hon. and learned Member for Newport was perhaps a little harsh in his comments on the Agriculture Bill, 1958. Although he did not like the fact that it abolished the disciplinary powers under the old Act, I understand that there was in that Bill provision transferring the Minister's powers over the land tribunals to the Lord Chancellor, which I understand was one of the things which was generally thought a good idea, and transferring the quasi-judicial powers of the agricultural executive committees 1641 to the agricultural land tribunals, of which the Franks Report spoke so highly.
In addition to producing the Bill, the Government have issued four Statutory Instruments giving effect to the recommendations and six circulars of various Ministries have endeavoured to move the matter along. Whatever complaint there may be about delay, at any rate there has been little delay since the Franks Committee issued its Report. The constitutional point that I find interesting is that where there is a remedy, according to the law there only lies the right, though some people think that this Bill, dealing only with matters of procedure, cannot be very important. Yet it is odd how rules of procedure seem in the end to direct or make law. I think that it was Dr. Johnson who said that the only advantage the English had over the foreigner so far as personal liberty was concerned was the writ of habeas corpus—in other words, the remedy itself has always been the important thing in English law.
I welcome the statement of the hon. and learned Member for Ipswich when he said that the balance now was in favour of freedom. I was delighted to hear that, particularly as it came from the benches opposite. Perhaps he will not mind my saying that many of us consider that unless there is private property there will be little freedom.
My criticisms of the Bill are mild in that they are more inquiring criticisms, although I have a number of main criticisms. I am not altogether satisfied why there is not power under the Bill for the Council on Tribunals to call evidence before it comes to a decision. I know that my right hon. Friend said that it was not usual to put such powers in a Bill, and he said, in fact, that the Franks Committee had no such power. My observation on that is that the Franks Committee was only a transitory body. This is to be a permanent and highly respected body. It will want to obtain evidence from Government officials, and it would be wise that it should have power not merely to request whether the Minister or his officials could spare a few moments to discuss something with it, but should ultimately be able to say, "I shall require your attendance", without too much circuitous negotiation.
I am also not altogether satisfied why the Bill does not include a provision for the publication of the Council's reports. 1642 I know that in Clause 2 (7) of the Bill there is a provision that theCouncil shall make an annual report.However, I do not think an annual report is quite what some of us have in mind, but that it should give a report of its particular recommendation so that we, the public, could compare it with what was put into operation by the Government or Ministry concerned.
The third point is that it has been recommended in Recommendation (35) that the Council should advise on the constitutional functions of new tribunals. There seems to be no reference to that matter in the Bill.
Finally, another subsidiary point, which has already been mentioned, is the question of privilege for witnesses before tribunals. I see that in another place the Lord Chancellor pointed out that this would entail the introduction of legislation.
It was indicated on behalf of the Government that the question whether there should be privilege for witnesses before these inquiries should be left to the Council on Tribunals to decide. I think that we are going a little too far with the burdens which are put upon the Council on Tribunals, for what it is set up to do is to make recommendations about procedure, but not about principle. It is required to advise or keep under review the constitution and working tribunals, and then there is some reference to particular matters. I should have thought that it was possible for the House to decide boldly on this question of principle, namely, whether evidence before these public tribunals and inquiries should be given on oath. I do not think this is a matter which should be passed on to the Council for its views.
I should also like to remind the learned Attorney-General that some of us would like to know what the Government have in mind in the light of the undertaking given in another place on 13th May, when an Amendment was promised to the Bill providing that statements of the grounds for the decisions of tribunals must be given. I understand that it was there intimated that an Amendment would be produced in due course. It cannot be produced now, but many of us would be interested to know what it will be. I understand that there are a number of matters upon which the Government have not made up their 1643 mind, in particular Recommendations (20), about costs, (60), about the qualifications of a particular board, (76), (77) and (82), to which reference has been made, namely, the opportunity for a party to correct a mis-statement of fact in a report, and (95). Those matters have been reserved. The Government in another place indicated that they were considering them.
Some of us would like to know whether the Government's consideration has gone any further yet? A number of matters are to be referred to the Council, but as yet there is no Government view. Privilege for witnesses is one of the points that I have instanced. I should have thought that whether and in what cases there should be an appeal on fact was a matter that the Government could decide and should not leave to the Council on Tribunals to reconsider.
Those are the observations with which some of us with a more curious mind are concerned. What are the main criticisms of an otherwise excellent Bill? Many of us are still not at all satisfied with the mixtures of procedure used to give effect to the Franks Report—that is, by Statutory Instrument, by Ministerial letter and sometimes by something put into the Bill. I join with hon. Members on both sides who have indicated that they think that the codes of procedure at inquiries should be made statutory. This is an enormous advantage with regard to the question of penalty for a breach. That leads me to ask, what remedy would a citizen have if the code of procedure in the Statutory Instrument or in one of the Ministerial directions is broken?
There might be argument about a procedure rule and the Minister or the inspector might not agree that the rule had been broken. There might be argument, for example, as to whether reasonable notice had been given or whether the points of claim had been clearly detailed. Unless there is provision for an appeal, this important point might be decided out of hand and might possibly decide the whole issue. All the matters of procedure, as with the rules of court, should be made by Statutory Instrument. The Bill itself should indicate that if there is a claim that there has been a breach of those rules, a person not satisfied with the decision of the tribunal that there was not a breach could appeal on that technical point.
1644 I join with those who are not altogether satisfied with the appeal provisions. Recommendation (25) favoured a wide appeal, not only on law, but on fact and on merit. The reasons are set out in paragraphs 105 and 106 of the Report. Clause 8, however, and the reference in Clause 9 (3), give only a limited power of appeal on law. It is limited only to a particular number of cases. I am not altogether satisfied that it would not be more proper to extend this.
The question of the policy statement is, no doubt, a difficult one. We had an explanation of it in the other place on 1st April. I do not think that one can be emphatic abount it. Recommendation (68) is a reasonable recommendation and direction. I have one point to raise concerning the policy statement. Under one of the directions in Circular 9/58, the Minister is prepared to give an indication of the policy which is involved in making an inquiry. The point which exercises my mind is the matter of discovery. The Franks Report pointed out that it was inadvisable to get inspectors from the Ministry which is concerned with the case to give evidence. There is, however, no reason why representatives, inspectors or qualified people from other Ministries should not be asked their views.
In the case of land which is taken for some purpose, the citizen might want to make the reply that his land is not really suitable because of the view of the road traffic commissioners. It is true that under the recommendations the party might call a witness or get a policy statement, but there is no power to get documents. To be able to obtain documents to check what a person says can be extremely useful. I would like to have seen the Bill give provisions to the tribunals to require not only the attendance of witnesses in particular cases to support or explain policy statements, but also to secure the production of documents.
The only other point I wish to make relates to paragraph 278, on which I do not expect to receive universal acclamation. This is a paragraph about which many of us feel strongly. It was forced out of the Committee almost against its will. In paragraph 278, the Committee pointed out:It is clear that objections to compulsory purchase would be far fewer if compensation 1645 were always assessed at not less than market value. It is not part of our terms of reference to consider and make recommendations upon the basis of compensation. But we cannot emphasise too strongly the extent to which these financial considerations affect the matters with which we have to deal. Whatever changes in procedure are made dissatisfaction is, because of this, bound to remain.The Government, who have done so well in producing the Bill and in implementing the Franks Committee's recommendations by means of Statutory Instruments and also by other Bills, must not lose sight of their target. The support of liberty is property and all this procedure, all this talk and argument about the balance between the State and the individual, is a mockery if we are not giving the citizen a good procedure to get a fair price. He must not only have a good procedure and an opportunity of stating his case fairly, but at the end of the day he must get, as paragraph 278 points out, not less than market value.
It would be interesting to go into other speculations, as did the hon. and learned Member for Ipswich, with whom I have some sympathy over the question of internees and of detaining people and of refusing passports, which even during the war exercised some of our minds. The famous case of Rex v. Leversedge, with its dissenting judgment, has always been one of my favourites as supporting the right of the individual, even in time of war, to be able to have his case and the question of whether he was a traitor or spy or dangerous person freely heard. There is a great deal in what the hon. and learned Member said, although I suggest that the internments which now occur are comparative to those which existed in this country unhappily during the war.
If we were to extend the Bill and our investigations and thoughts, let us not forget that there are other tribunals which may well learn from what we are saying, from the Bill and from the principle, to which we subscribe, that impartiality and fairness are things which are not to be picked up and used merely when a matter of the Government and the individual. The principles might well be used by other tribunals which deal with the livelihood of men. I refer to closed shops and expulsion from unions. Other tribunals might well learn something from what we are trying to 1646 teach or learn from the Government today.
§ 5.57 p.m.
§ Mr. A. J. Irvine (Liverpool, Edge Hill)
I will not follow the hon. and learned Member for Bolton, East (Mr. Philip Bell) in the later more polemical parts of his speech, in which he endeavoured, in a tradition that bears no ascertainable connection with that of Assissi, to identify liberty and property. I join with him, however, in his welcome to the Bill. It has been welcomed on all sides. My only feeling is that after our earlier debate on the Franks Report, it is rather disappointing that the Bill does not go further than it does.
I was encouraged by the promptitude with which the Government dealt with the recommendations of the Franks Committee and also by the remarkable extent to which they found themselves ready and able to accept the recommendations of the Committee. These were both encouraging matters. In the light of that, the contents of the Bill are somewhat disappointing, particularly because they go such a very small distance in relation to administrative inquiries. This is the point which my right hon. and learned Friend the Member for Newport (Sir F. Soskice) most emphasised, and I agree with him.
The only significant provision in the Bill dealing with the inquiries is in Clause 1 (1, c). It is interesting, as my right hon. and learned Friend pointed out, that that was inserted only on Report in another place. It is difficult to be sure what will be the effect of that subsection and I should like in this connection to follow up a point on which I ventured to intervene during the speech of the Lord Privy Seal.
"Particular matters" will be referable to the Council. This is not a Committee point, but one which goes to the heart of the Bill and what we are considering in Clause 1. Particular matters, I would have thought, could either be particular cases, cases of appellants and applicants with their own given facts, or, alternatively, aspects of procedure and procedural policy. Which is it envisaged by the Government is going to be referred to the Council?
Let me illustrate this query by a simple example which may often arise. Suppose an appeal is put forward against refusal of permission to develop land in a certain 1647 way; suppose, further, that the appeal takes place after a policy statement has been issued and after the local planning authority has given clearly and fully its reasons for refusing permission, and that the evidence is fully heard and that the witnesses desired to be called by the parties are called. After all that the inspector makes his report and his report includes a recommendation.
Suppose that the inspector's report and recommendation are not followed by the Minister in the Minister's letter of decision. Is it that kind of case, where the balance of reason and justice appears to suggest that the Minister has in the context of all these matters to which I have referred and particularly the recommendation of the inspector, come to a conclusion which is not reasonable or tenable, which is going to be referable to the Council under Clause 1? I think it is interesting and important to know, and I would appreciate it if the right hon. and learned Gentleman, in replying to the debate, could indicate a little more specifically than it has been indicated hitherto what the Government believe is comprised in the expression "particular matters" in Clause 1.
We are reminded by the Government in connection with the failure of this Bill to deal with the matter of administrative inquiries of two particular points. They first of all remind us that administrative action has been taken and is being taken, and then they assure us, further to that, that this Bill is only the first instalment and that further legislation will follow to implement the Franks Committee's recommendations. Therefore, the position, as I see it, is that we are being asked in this House now to reconcile ourselves to an interim period of unspecified length during which we are to rely upon administrative action to correct faults in the inquiry system.
I ask myself and I ask the House why this should be. I share the regret which other hon. Members have expressed that there has not been written into the Bill the code of procedure which should govern the administrative inquiry. I would ask the House to bear with me while I point out that when in the case, for example, of a planning appeal, it is desired to achieve the openness, fairness and impartiality of which the Franks Committee spoke, these are features in an 1648 inquiry which can be brought about by quite simple and straightforward steps. What are essential, to get fairness and impartiality and openness on a planning appeal or a compulsory purchase order, I think it will be generally agreed, as it was certainly accepted by the Franks Committee, are four features.
First of all, in the case of a planning appeal, that the grounds of refusal by the local planning authority should be clearly set out. Secondly, that the Government's policy in connection with the matter under consideration should be known. I agree by and large with what the hon. and learned Member for Bolton, East had to say about the policy statement, except that I attach greater importance to it, I think, than he does. It is, I think, a very important factor in the matter indeed. Thirdly, that the text of the inspector's report should accompany the Minister's letter of decision; and finally, that the letter of decision by the Minister should state the Minister's reasons.
When these four features are present, and only when they are present, is it possible for the appellant to know whether, on the evidence heard by the inspector, a reasonable decision has been arrived at. If we have these four features present and the evidence considered in the light of them, then it becomes possible to determine without undue difficulty whether the issue in dispute has been in any sense of the word subject to arbitrary or oppressive determination by the Minister.
As I said, I wish that it could have been clearly written into this Bill at least that the Council on Tribunals in its consideration of matters referred to it under Clause 1 (1, c) should have regard to these factors to which I have referred, which were all recommended by the Franks Committee.
I repeat that I do not wish it to be thought that I do not welcome the Bill so far as it goes, but with the background of prompt acceptance of the principle of nearly all the Franks Committee's recommendations it seems disappointing that it goes, particularly on this matter of inquiry procedure, such a very short distance. I would add that the tribunals listed in the First Schedule are mainly tribunals in regard to the conduct of which comparatively few 1649 complaints are heard. The real burden of the criticism, the main difficulty, in my belief, arises in the case of the administrative inquiry, and it is just this difficulty to which the Bill gives comparatively little attention.
I should like to give two specific examples of opportunities which I regard as having been missed by the Government. The first is this matter of a statement of policy, to which I attach very great importance indeed. It was Recommendation (68) of the Franks Committee, and it is one of the very few recommendations of the Committee which has been rejected. I want to put in a plea for it.
We have been told that there are two main objections to the policy statement. First of all, it is suggested that if it becomes a part of the procedure as a matter of rule the objector or the appellant, as the case may be, when he reads the policy statement, will think his case has been prejudged. That is put forward as an objection in principle to it. What I would say to that is that, of course, the case may be prejudged. It often is prejudged if a policy decision has been arrived at, which may be perfectly correct as a policy decision. It will often occur that the appellant's or objector's case is prejudged, and there is no inherent injustice in that fact, in my humble view.
What is unreasonable, if the matter is so prejudged, is that the objector or the appellant should go forward as if it were not prejudged and should go to the expense and loss of time involved in an inquiry which is bound to be abortive. That particular ground of opposition to the policy statement is not one which I can accept as substantial or sound.
We are told, secondly—and on this recent developments can shed an interesting light—that it is a difficult task to draft or prepare an appropriate policy statement in a great many instances where one is dealing with a great variety of facts in the cases which arise. It is interesting to note that when this was being dealt with in another place on 27th October last, the Lord Chancellor gave, in illustration of the difficulty in preparing an appropriate policy statement, the case of an application to develop land as a petrol filling station. But in April, 1958, the Ministry of Housing and Local 1650 Government produced Circular 25/58 dealing with this precise point. I recommend that Circular to the study of all hon. Members. It might well serve as a model of what a statement of policy should be.
That fact is interesting. It suggests, first of all, that the difficulty of preparing a policy statement is not nearly as considerable as is often suggested. It is interesting additionally in that it provides an example of a policy statement dealing with a precise and particular case which the Lord Chancellor, in the debate in another place, had selected as an example of special difficulty. Now, when a planning appeal comes to be determined as to whether or not permission should be given to develop a piece of land as a petrol filling station, the matter can be considered in the light of this Circular in a way which makes it quite possible to consider fairly the particular facts of the case. The evidence can be considered in the context of the planning authority's grounds for refusal, the Ministerial statement of policy, the inspector's report, and all the rest. The elements of fairness and openness to which the Franks Committee referred are implemented in a way that is satisfactory to all.
A second example of failure by the Government to take opportunities relates to a rather separate and different point. It is the fate of Recommendation (91) in the Franks Committee Report, that provision should be made for an appeal to the courts on a point of law against a determination by the Minister under Section 17 of the 1947 Act. That is an appeal from the determination by the Minister under Section 17 on the issue whether an alleged development is in fact and in law a development within the meaning of the Town and Country Planning Act, 1947.
I heard the Lord Privy Seal today refer to this point. I did not expect reference to it because it is a relatively minor and separate point, but the right hon. Gentleman seemed to indicate that the implementation of this recommendation would be much better if it took place in an amending Town and Country Planning Bill instead of in this Bill. Why should that view be taken? Here is a recommendation of the Franks Committee on a matter relevant to administrative inquiries. Here is a new appeal for which 1651 I should have thought all hon. Members would think it desirable to provide. It seems a missed opportunity that provision for it is not made in the Bill.
We all know that the enforcement provisions under the 1947 Act are in a tangle, but it is right to say that recent decisions suggest that, for a determination in the courts of the question whether an alleged development is a development under the 1947 Act, it is often necessary or may be necessary to await the final stage of criminal proceedings under Section 24 of the 1947 Act. It is not a matter that can be put to the test in certain instances under the first proceedings in respect of enforcement notices under Section 23. The matter can be raised in particular cases only when it comes to a question of conviction and penalty under Section 24.
All I suggest is that the longer, under the procedure of the 1947 Act, one has to defer the determination of the issue whether what a local planning authority alleges to be a development is a development, the more desirable it would seem to be quickly to implement this recommendation by the Franks Committee and make it possible, initially under Section 17, to go to the courts from the Minister for a determination of that point.
The recommendations of the Franks Committee are to my mind of quite cardinal importance to everyone in the House, but particularly, and this is a view which I have strongly held for a long time, to hon. Members on this side of the House. I say that because it is we on this side of the House who are committed more than hon. Members opposite to the view that, in the general interest, powers and duties must be conferred on public authorities and departments. It is all the more important, therefore, that these powers should be exercised with scrupulous care. Only thus can we achieve a more orderly society which is at the same time free.
§ 6.18 p.m.
§ Mr. Charles Fletcher-Cooke (Darwen)
I think that I am the sixth learned Member in succession to have the privilege of addressing you, Mr. Speaker, in the debate. That lightens my task because, as all hon. Members would agree, it is the lawyers who can put these points most succinctly, quickly, clearly and accurately, and I 1652 think that most of the points have already been made at this comparatively early hour of the debate.
My hon. and learned Friend and neighbour the Member for Bolton, East (Mr. Philip Bell) seemed to me to rattle off criticisms of the Bill, relatively small but nevertheless important, in such a way that we are left at quarter-past-six with most of our work completed.
I feel, therefore, that, since we are all agreed, I should like to liken this battle for liberty in which we are all engaged to the way in which the Dutch are pushing back the sea and reclaiming the land. We are pushing back the dark frontier of anonymous decree in favour of fairness, openness and impartiality. We have got some way. In the case of the tribunals it seems to me that the Bill pushes the sea back completely, below the low-water mark.
There are one or two things which might be improved, but on the whole, subject to the very serious criticism about the lack of appeal on fact and merits, the tribunals are now in fairly good shape. We are making some progress in pushing back the sea further as regards inquiries, but not as much progress, and I ask my right hon. and learned Friend, when he replies to the debate, to clarify the position about the power of the Council over administrative procedures, inquiries, and I suppose also, although this is not clear, hearings.
It was clear that in another place the Lord Chancellor rightly and fairly decided that the Council must be given the power of its own motion to look into the way the administrative procedures were working. That being so, I do not quite understand why it was necessary not just to put the words "administrative procedures" after the word "tribunals" in Clause 1 (1, a) of the Bill, because then the Council would have had the same power to keep under review the constitution and working of the administrative procedures as of the tribunals. In some way, however, its power is still in that respect somewhat less, at least so I read that distinction between paragraph (a) and (c) and I wonder why, and in what way, the distinction lies.
Perhaps my right hon. and learned Friend could clarify that distinction and give the reason for it. Perhaps, at the same time, he would assure us that paragraph (c), when it talks of administrative 1653 procedures and concludes with the rather strange phrase "any such procedure", includes hearings as well as inquiries? Because already, since the publication of the circular in question, there has been in the Press and elsewhere a feeling, no doubt misplaced but nevertheless a suspicion, that somehow refuge will be taken by those dark and anonymous forces which are still lurking in the machinery of government, who do not wish the full effect of the Franks idea to take effect; that they will somehow take refuge in the Ministerial option to prescribe hearings rather than inquiries more often than they should.
It would, of course, be a mockery of what has already been done by Ministerial circular, and what we hope and are promised will be done eventually by Statutory Instrument, namely, the creation of a proper code of procedure for inquiries, if that is to be nullified by the prescription of hearings rather than inquiries by Ministers more frequently than is at present done. I hope, therefore, that these two matters may be looked into, namely, whether Clause 1 (1, c) gives the Council power of its own motion to look into the procedures, including hearings, and, secondly, that we shall have an assurance that hearings will not be preferred, for this rather sinister reason, by the Ministers in the future.
In this pushing back of the sea and the reclaiming of the land we have, of course, got nowhere on the unexplored tract of territory referred to by several hon. and learned Gentlemen opposite. As the hon. and learned Member for Ipswich (Mr. Foot) said, when this operation has been performed we shall really arrive at a most startling contrast between the administrative decisions of Whitehall, for which some sort of hearing is provided, where we hope the openness, fairness and impartiality will be apparent, and those for which, quite fortuitously in many cases, none is provided. The hon. and learned Gentleman quoted the case of passports and of those matters affecting personal liberty.
There are also a great number, as I ventured to mention in the debate in October last, connected with financial and commercial matters, such as exchange control or the giving of licences to London taxicab drivers and others, where there is no appeal against a com 1654 pletely arbitrary decision, a decision that often gives no reason and merely returns to the applicant a flat "no". In many such cases, we believe, there is often a pure mistake of fact to be found in the Ministerial files. Departments are busy and civil servants are overworked, and it often happens that there is a mere confusion of identity which could easily be put right, and would be put right if there were an appeal to an administrative court to find the facts, even if it could have no control over the decision.
It was for this reason that in our pamphlet, "The Rule of Law" we explored the possibility of an administrative division of the High Court to undertake this important task; the kind of task which the hon. and learned Gentleman rightly referred to as being much better done abroad than it is here, because here it is simply not done at all. I do not say that we should necessarily copy the French or the Swedish experiences, but at least they have done something; they have recognised that there is a problem there. So far, we and the Franks Committee have not been allowed even to explore the problem.
The Bill, in setting up the Council which the Franks Committee thought so important, is a major step forward. I believe that this Council will form a most useful permanent watchdog, as the right hon. and learned Gentleman said, over the whole sphere of administrative procedure. It is important, since we are setting up the Council now, and since the Bill, in most of its Clauses, is primarily concerned with it, that we should see that it is given from the start the status it deserves.
I ask why there is no provision in the Bill, first, for the power to send for persons and papers which the Council certainly should have if it is to be a permanency; secondly, why there is no provision in the Bill for a rule-making power, not necessarily by the Council itself but by the Lord Chancellor or some other suitable person, who can make the rules statutory on its recommendation? I suppose that there would have to be separate legislation of some kind before these procedures, which are at present supported by the frail and unsatisfactory device of a ministerial circular, could be made statutory, because I know of no statutory power to lay instruments in 1655 connection with these matters at present. Why, therefore, cannot the rule-making power be put in the Bill and thus save a stage in the process? Then we should have had a real debate. At present, it seems that all we are doing is to vie with each other in taking credit for the instituting and carrying through of a most important matter, and this competition in self-glory is not the best sort of debate.
It is good that all parties are united in this matter. I hope they will remain so. I feel that we might have all been sitting on this side of the House today, and that the silent, though no doubt very worthy opponents of this idea—namely, those whose lives will be made much more laborous as a result of the Bill, the permanent civil servants—ought to have been sitting opposite, with the permanent under-secretaries perhaps on the Opposition Front Bench.
However, it is extremely good, first, that the Government should have acted so promptly; secondly, that they should have shown themselves already so very open to suggestions, and the Lord Chancellor's Amendment on procedures in another place is a very good augury; and, thirdly, that they should have done what must have been an immensely difficult task, namely, to have induced their advisers in this short time about the necessities of the case. Without wishing to criticise them, I feel that they must be looking forward with some trepidation to all this because it will put a greater burden on them. Nevertheless, the Government have had the drive to ensure that their objections did not prevail.
I will end on a note of detail. Everybody, from the Franks Committee Report forward and backwards, has implored the Government to ensure that the inspectors when hearing the inquiries relating to compulsory acquisition and to planning should be seen to be the Lord Chancellor's men, to be appointees of and to be promoted by and dismissed by the Lord Chancellor. I believe that the objection to that proposal does not come from any politician of any colour at all, but is a purely administrative and Civil Service objection. The evidence of the very fine and noble man, the Permanent Under-Secretary of the Lord Chancellor's Department, before the Franks Committee was to that effect.
1656 I implore my right hon. and learned Friends to see whether they cannot, difficult though it may be, get over that hurdle. There is no doubt that the public, however many explanations may be given and however many reassurances may be given, so long as the inspectors are the Minister's men, will not have confidence in what wilt otherwise be a very good procedure.
§ 6.33 p.m.
§ Mr. David Weitzman (Stoke Newington and Hackney, North)
A great many compliments have been paid to the Government for the expeditious way in which they have acted. I hate to create any discord, but I should have thought this a reform which was long overdue. Whether we blame one Government or another, it is a matter which ought to have been dealt with many years ago.
This Bill seeks to cure an evil which has grown up over many years and must be remedied, and attention has been directed to it again and again. Lord Hewart's book "The New Despotism" drew attention to what was happening. Many years have passed since then. No one is entitled to compliments for expedition. If anything, every effort ought to be made to hurry up as much as possible not only this reform—it is only a first instalment—but many other reforms in this direction.
I welcome the Bill. It is a good one. I am not as optimistic as the hon. and learned Member for Darwen (Mr. Fletcher-Cooke), who thought that the sea had been pushed back below sea level. The Bill introduces certain very good measures. If it were possible, I believe there ought to be administration by the courts in all these matters, for that is the best possible system. But the increasing responsibility of the Government in many fields makes it inevitable that tribunals and inquiries should play an essential and ever-increasing part. They carry out work, with which it is obvious that the courts could not properly cope, and they have the advantages, as has often been pointed out, of informality and cheapness. They have grown up over the years in rather sporadic fashion. The main point about the Franks Committee is that it did excellent work in examining their functions and putting forward recommendations which would make for coherence and logic in their constitution.
1657 The Bill is the first attempt by Act of Parliament to make certain of the recommendations effective. It is the first effort to put them on a proper legislative basis. Therefore, it is a good Bill and is deserving of welcome from all parts of the House. However, as has been demonstrated by what has already been said by a considerable number of hon. Members on both sides of the House, there are a number of very important points of criticism. I would first offer some words of criticism of Clause 1 (1, c). We have been reminded that when the Bill was originally presented this provision was not in it and that it was inserted in an endeavour to meet certain points raised in another place, which have been repeated by a number of hon. Members today and which I, too, would emphasise.
In spite of its title, the Bill contains hardly a word about inquiries. There has been grave concern in regard to the activities of inquiries presided over by departmental servants, hearings by inspectors, compulsory acquisition and planning development inquiries which come under the general heading of administrative procedure. It is in regard to those, just as much as in regard to tribunals, if not more in certain cases, that it is necessary to take a measure of some kind to restore public confidence.
I also would like to know the meaning of Clause 1 (1, c), which was inserted to meet that criticism. As I read it, it enables the Council on Tribunals to consider a report on any matter referred to it or which the Council thinks of special importance with respect to administrative procedure. The Clause does not, as in the case of tribunals, require the constitutional working of inquiries or like bodies to be kept under continual review. It does not, as in the case of tribunals, require a report from time to time—the annual report referred to. In other words, it leaves Government Departments, as previously, to carry on with these procedures subject to such changes as they care to bring about by Ministerial circulars.
I have a further question to ask. What experience will the Council on Tribunals have in regard to matters of inquiries upon which it can draw? Surely the real way to remedy this omission is by Amendment by including in subsection (1, a) and 1658 (1, b), a reference to administrative procedures involving inquiries as well as tribunals. Then, the Council on Tribunals would have these matters within its purview. I suggest that that is an extremely important point of criticism of this Bill.
May I now say a word with regard to the question of the right of appeal? The Franks Committee, in its Report, in Recommendation 25, said:There should be an appeal on fact, law and merits from a tribunal of first instance to an appellant tribunal, except where the tribunal of first instance is exceptionally strong and well qualified.There is nothing in the Bill to provide for that. I assume that on this matter the position has been left so that appellate tribunals, if they exist already, may continue as before, as in the case of the National Service Act, 1948 but, surely, we ought to have some view expressed by the Government as to what they intend to do with regard to that recommendation?
I welcome the provisions in Clause 8 dealing with appeals on points of law, and I welcome, too, the provision in Clause 10 which removes any restriction on the remedies of certiorari and mandamus. I think, too, that, as my right hon. and learned Friend the Member for Newport (Sir F. Soskice) said, it might be wise to consider whether an appeal referred to in Clause 8 on any point of law should not be made direct to the Court of Appeal, and then, with leave, to the House of Lords. It would appear, on the face of it, that there might be certain advantages in that.
I should like to refer now to one or two matters which I would have liked to have seen mentioned in the Bill, but which do not find a place in it. I have already referred to the absence from Clause 1 (1, a) and (1, b) of any reference to administrative procedures. The evils which, to some extent, this Bill will meet will not really be removed until we get legislation dealing with all the abuses of procedure and complaints about bad administration, on the lines of this Bill. I respectfully suggest that the provisions of this Bill should not be limited to tribunals or even to inquiries, but that it should embrace the much wider field of administrative procedures, and, indeed, that that term should be used in its widest possible sense. If that cannot be done by Amendment of this Bill, I trust that we 1659 may have some assurance from the learned Attorney-General that it will form the subject matter of further legislation in the near future.
I should have liked to have seen written into the Bill a provision requiring that the hearings at tribunals should be held in public, as is set out in the thirteenth Recommendation of the Report. I know that it has been said in another place that there is no intention of derogating from any provision already existing that inquiries should be held in public. I know that it has also been said that reference will be made to the Council on Tribunals regarding the hearings at various categories of tribunals which at present are not held in public. My own view is that this is not satisfactory. It seems to me that the principle is so important that it ought to be stated firmly in one of the Clauses of this Bill.
Now I should like to add a word to what has been said about inspectors' reports. The Report of the Franks Committee recommended publication of a—summary of evidence, findings of facts and inferences of facts; and reasoning from facts … and recommendations.Most important of all, the recommendation was that an opportunity should be given to the parties to propose a correction of the facts, and that, in effect, was a form of appeal on their part. My own view is that that is so important a change that, in some way, it should be referred to in the Bill or brought within the matters referred to in Clause 1.
I understand that this is a change which will be effected administratively, and reference has already been made to a circular issued by the Ministry of Housing and Local Government. I gather that the findings and the Minister's decision as a result of that circular are now given at one time. If that is done, it is in direct contradiction to the recommendation of the Franks Committee, because no opportunity is given for the party concerned to correct any mistakes. It is wrong, in my view, that a matter of this kind should be left to the Minister or to his Department. It should be enacted in clear language in the Bill, or in some code drawn up by the Council so that the parties can appreciate and understand their rights.
1660 Another important omission from the Bill, as it now appears, is the failure to insert a provision that the reasons shall be given for the decisions arrived at. This, of course, is extremely important, not only in showing how the matter is dealt with, but in enabling the parties to appeal on proper grounds, and, indeed, in some cases, in providing an appeal. I am very glad to know that an undertaking has been given that by some Amendment a provision will be inserted in the Bill to meet this point, and, like the hon. and learned Member for Darwen, I shall await with interest the terms of that provision to see if it is a satisfactory one.
Now let me refer to another matter which, in my view, most certainly ought to find a place in the Bill. The Franks Committee said that there was a strong case for extending legal aid to tribunals: and a good case; and here I quote the words of the Report:The official scheme of legal aid should be extended at once to those tribunals which are formal and expensive and to final appellate tribunals.The Committee made a clear and direct recommendation to that effect. I was glad to note the recent announcement of the Government that they are endeavouring to put into effect before the end of the year some scheme for bringing in the provision as to advice as provided for by Section 7 of the Legal Aid and Advice Act, 1948. I take it—and I should like the opinion of the learned Attorney-General as to this—that the provision of such "advice" will include advice relating to the matters that come within this Bill.
With regard to the extension of legal aid, which was so strongly recommended in the Franks Committee's Report, I would urge the Government to insert a provision to that effect in the Bill. I think it is necessary that this should be inserted, because it will be remembered that in the Legal Aid and Advice Act, 1948, proceedings before tribunals or administrative bodies were not included in the First Schedule to that Act. Therefore, as that Act stands, they are bodies in respect of whose proceedings legal aid can be given. I know that the Government have said that there is a long queue, but now that that scheme has been extended to apply to country courts and advice is to be given, something should be done with regard to this matter.
1661 Surely, it is rather hard on parties who go before these tribunals not to give them such aid. These are cases which vitally affect them. They may well be prevented from bringing a successful appeal because of the lack of means. They are often cases of even greater importance than those in the High Court or county court, where legal aid is given. After all, it should be remembered that there are safeguards in the scheme. It has to be shown before legal aid is given that there is a case upon the merits. Aid is only given to persons of limited means, and very often a considerable contribution is made by the party to whom legal aid is given. I would, in those circumstances, urge the Government to look at this matter again.
I have offered a number of points of criticism. I welcome the Bill in the hope that it may be enlarged in certain respects. In any case, I hope that it is merely a first instalment in an effort to deal with this vital problem of safeguarding the interests of the individual against the State, and in recognising the fact that Government Departments are not above the law. I hope that it will have a smooth and rapid passage on to the Statute Book.
§ 6.51 p.m.
§ Mr. Bryant Godman Irvine (Rye)
We are spending a good deal of our time today discussing procedure. It may be as well for us to recall that the procedure which is adopted by some tribunals will in no way be affected by this Bill. What we are trying to do is to extend the procedure, which has been found to work in some cases, to the tribunals where it has not been accepted before.
My hon. and learned Friend the Memebr for Bolton, East (Mr. Philip Bell) referred to the object which we are all trying to achieve and mentioned that the compensation received at the end of the procedure is the important point. It will not do us very much good if today we arrive at a perfect procedure and then the people who go through that procedure find that they are not receiving something which gives them satisfaction. I therefore urge the Government to pay attention to that point, because all the work which we are doing today will have been of no avail unless in questions of compulsory purchase of land that point receives attention.
The other important point about procedure in the Franks Committee Report, which has not so far been mentioned, is 1662 set out in paragraph 405. That mentions the importance of the way in which people make their first approach where these procedures are being adopted. The Franks Report says:… nothing can make up for a wrong approach to administrative activity by the administration's servants. We believe that less public resentment would be aroused against administrative action if all officials were trained in the principle that the individual has the right to enjoy his property without interference from the administration, unless the interference is unmistakably justified in the public interest. For example the attitude of an owner or occupier may well turn on whether he receives reasonable and courteous notice of a proposal to inspect the land.All of us will have had experience of cases where the servants of the administration have not borne that important principle in mind. We know of cases where they have entered land and have done considerable damage without any permission for doing so, and there is no way in which the individual can get redress for that. Therefore, if there is anything that we can do today by drawing attention to the importance of correct procedure, it may be that attention can also be drawn to the importance of the first approach and the courtesy which the administration's servants show.
The other point that I would like to mention is in relation to the inspectors. The matter has been mentioned by one or two other Members today. The Lord Privy Seal, when he was opening the debate, mentioned that it was important for the inspectors to work in close contact with their Departments so that there shall be an efficient dispatch of business.
Before I was disqualified by coming here, I was the chairman of one of these tribunals and, if my recollection serves me correctly, I was first appointed by the Minister and subsequently by the Lord Chancellor. So far as the procedure was concerned, everything went on exactly the same whoever appointed the chairman. It therefore does not seem that it will make much difference from the point of view of the dispatch of business who appoints the chairman, whether it is the Minister or the Lord Chancellor.
§ Mr. W. R. Rees-Davies (Isle of Thanet)
What was the nature of this body of which he was chairman? I think it is relevant to this issue.
§ Mr. Godman Irvine
It was an agricultural land tribunal.
This matter has been discussed in another place on three occasions, and the Lord Chancellor has gone to considerable trouble to explain his objections to the appointment of inspectors by his Department. He mentioned, for example, that in one Ministry, the Ministry of Housing and Local Government, they have 6,000 appeals a year, which is more than the Lord Chancellor felt he could arrange through his Department. I suggest that it would not be necessary for any organisation to be transferred to his Department, apart from the actual appointment of those inspectors.
There is no reason I can see why inspectors should still not be just as closely attached to the Minister as they are at the moment. The important point is that they should be appointed by the Lord Chancellor so that the public may see that they are nothing to do with the Minister to whom they are reporting. That seems to me to be a point of considerable substance, and I hope the Government will consider it again.
§ 6.56 p.m.
§ Mr. Mark Bonham Carter (Torrington)
I hesitate to speak on this Bill, as I believe I am the first Member to speak in this debate who does not belong to the legal profession. Therefore, anything I say will be said with hesitation and humility, but I shall speak as one of those who will be affected by what is proposed in the Bill.
A number of points have been made this afternoon by hon. Members, and I do not think that it will be necessary for me to apologise for not following them. I may indeed follow them so closely that I shall say precisely the same things that they have said.
We have had quotations from Blackstone and De Tocqueville and from a Labour Party pamphlet. The quotation which I should like to use to introduce my speech comes from no less an authority than Dicey, but it was Dicey quoting a Spanish proverb:The more we have of the more, the less we have of the less.This seems to me to be the condition which this Bill is designed to remedy. There has been so much more of the more over the last thirty or forty years 1664 that, as the right hon. Gentleman the Lord Privy Seal said in his opening speech, this is the first Bill for a long time which has made any attempt to defend the rights and liberties of the individual against the increasing power of the State. It is, therefore, one which, as Liberals, we can only welcome, and I would like to join with other hon. Members who have congratulated the Government on the speed with which they have followed up the Franks Report and on the speed with which the Bill has been introduced.
I cannot go quite so far as the hon. and learned Member for Darwen (Mr. Fletcher-Cooke), who compared the Bill to a Dutch dyke and saw the sea being pushed back in all directions. We hope that the Bill is the first stage in the defence of the liberties of the individual, but we hope, also, that the Government will not be satisfied with this alone.
There is one point in particular which has been mentioned before and to which I should like to draw attention. That is the question of the decisions of tribunals. As I understand, it is possible for an individual to appeal to the High Court, from a decision by a tribunal, but also, as I understand, unless the tribunal states the reasons for the decision which it has reached, it may be impossible for the High Court to deal with such an appeal.
It therefore seems to me essential that all these tribunals should give their reasons, both to make it possible for persons to appeal from them and also because it seems to me important that people should understand the grounds on which tribunals reach their decisions. It is important not merely that justice should be done but also that it should be seen to be done, and in connection with this matter we should like an assurance from the Government that these tribunals will state their reasons for reaching their decisions.
Secondly, I join with other hon. Members on both sides of the House who have emphasised the importance of having the proceedings of these tribunals held in public. A provision should be written into the Bill to this effect. There are occasions on which, for obvious reasons, it is better that such proceedings should be held in private, but the need for this ought to have to be proved and it should be the normal practice to hold them in public.
1665 In the Bill as it stands very little is said about inquiries, but it seems to me that inquiries are one of the matters which have given rise to a considerable feeling of distrust on the part of the public. Nor is anything said in connection with what has been called Crichel Downism—or maladministration. This subject has inevitably been left out of the Bill, since it was beyond the terms of reference of the Franks Committee, whose conclusions provide the basis for the Bill. I hope that the Government will regard the Bill as a first stage, and that the very difficult and complicated but important question of maladministration, or Crichel Downism, will receive their attention after the Bill has gone through all its stages.
In the meantime, I join with other hon. Members—all members of the legal profession, so far—in saying how much I welcome the Bill, and hope that it will have a quick and easy passage.
§ 7.2 p.m.
§ Mr. W. R. Rees-Davies (Isle of Thanet)
We were all delighted to hear our Liberal colleague contributing to the discussion of this matter, to which I know the Liberal Party has always given great support. If, as he pointed out, the hon. Member for Torrington (Mr. Bonham Carter) were not a specialist in the subject, he certainly did not let the specialists' team down.
In a modern society the preservation of the liberty of the subject is a specialised and complex process of law. The reason why those who have spoken in the debate so far have been specialists is that unless one is a specialist one does not understand how to control the great power of the State and the paraphernalia of Whitehall. My hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke) pointed out the real pith of the debate. He said that there was no debate on the Bill, because we are all agreed upon it, but that there was a debate going on between the Civil Service and the lawyers. It is more than a debate; it is a fight.
The Bill restores some of the power of the House. It is the outcome of the efforts of a great many back benchers, which led to the setting up of the Franks Committee. I want to make sure only that the Bill gives power to the Council which is set up under it. In this connection, two recommendations were made 1666 by the Franks Committee. The first was that a Council should be set up, and the second—which I earnestly draw to the attention of the House, because in no part is it contained in the Bill—was in these terms:The detailed procedure for each tribunal should be designed to meet its particular circumstances and should be formulated by the Council of Tribunals in the light of the general principles enunciated in this Report. The aim should be generally to combine an orderly procedure with an informal atmosphere.Everybody is agreed upon that recommendation. All the specialists who have spoken, on both sides of the House, agree with it. It is accepted by everybody who has ever written on the question of the rule of law—and many of them have been elevated to Ministerial rank. I am delighted to see that the holder of the Front Bench at the moment is a co-author of the pamphlet, "The Rule of Law". I refer to the Joint Under-Secretary of State to the Home Department. My right hon. Friend the Minister of Health was another of its co-authors, and the Financial Secretary to the Treasury yet another. Despite their combined power, the Bill is not yet properly drafted to meet the principles set out in the pamphlet. After all the evidence given before the Franks Committee—and I was one of those who gave evidence—and the unanimous findings of that Committee, we have still not yet defeated the paraphernalia of Whitehall.
If we look at the Preamble to the Bill—and it is sometimes useful to do so—we see that nowhere does it confer any power upon the Council. It is:An Act to constitute a Council of Tribunals; to make further provision as to the appointment …and so on. There is no word of any conferment of powers or as to the procedure to be adopted by the Council. Clause 1 says:There shall be a council, entitled the Council of Tribunals … to keep under review … to consider and report … to consider and report …That is all. If the Lord Chancellor is to approve such a Council, I have not the slightest doubt that its work will be admirably set out, and I have little doubt that the work it does in the next few years will also be admirable. But what will be the position if, in the years ahead, another Government decide that they do not want to pay any attention to the work of the 1667 Council? There is no power which the Council can enforce.
I want to deploy my reasons for saying that the Bill will require amendment if it is to have teeth, and greater strength. I agree that it covers both tribunals and inquiries, but it is to be noticed that many tribunals and inquiries have been deliberately excluded from the Schedule—especially those related to town and country planning. The difficulty is that it is twenty-five years since the Donoughmore Committee reported. For twenty years Parliament showed no real sign of tackling the problem. Only in the last five years has it at last begun to look towards the checks and balances which are necessary to restore some of the liberties of the subject.
As so often happens in matters of this kind, I first became deeply interested in the subject by chance, at the time of the new town inquiries with which I was concerned—especially in the case of Crawley and Stevenage. It was an unfortunate observation—although a perfectly truthful one—made by Sir Hartley Shawcross, no other, which led to my becoming interested in this subject. In referring to the Stevenage and Crawley new town inquiries, he was quite right to say that the opportunity for objectors at those inquiries was merely to blow off hot air, and that it was nothing else. He went on to say that the legislation of the New Towns Act, 1946, was not designed to give any right of a proper hearing to the objector; it was designed merely as an opportunity for him to make an objection. At that time I felt strongly about the matter. I hope one day I shall have an opportunity in this House to redress the balance.
After 1947 and 1948, I had an opportunity, as no doubt many other hon. Members had, to appear before rent tribunals. I. remember once being refused any hearing at all at one inquiry when I appeared for a man who was deaf and dumb and whose licence was to be revoked. I remember on another occasion, when cross-examining one of the witnesses, that he suddenly left the rent tribunal, whereupon the chairman dismissed the case in my favour, which was an unusual mode of justice. The chairman of the rent tribunal at Hammersmith did not like cross-examination or questions put in any way but through the chair. I observe that 1668 Recommendation (19) of the Franks Committee expressly deals with that point, saying that parties before tribunals should be free to question witnesses directly and not only through the chairman.
Many of these matters have been canvassed among organisations, who gave evidence before the Franks Committee upon them. In a good many cases, both in connection with rent tribunals and with inquiries under the Ministry of Housing and Local Government, there was keen and intense opposition from those representing the official departments, both in the case of health and of housing. In many other cases, evidence was given strongly to the contrary view, namely, that this was merely an administrative procedure and that there was nothing quasi-judicial about it at all.
So it was through 1948 and 1950, until the legislation which right hon. Gentlemen apposite introduced—or their predecessors—without these brakes. We have Members on the Opposition benches in this Chamber today who are well known for their liberal views on this matter, those who have an understanding of the subject, like the right hon. and learned Gentleman the Member for Newport (Sir F. Soskice), who led for the Opposition. I am content with the views which they express, but not with the views of some who are absent and who have a dictatorial attitude to the matter. These views have led them to pass legislation bringing about the state of affairs which we found in the rent tribunals and the new town inquiries, and many other things about which some of us have felt so strongly. That is the background to 1950 and 1951, and until about six years ago.
Hon. Members on this side of the House got together, and various inquiries took place—this is history—leading to pamphlets. The pamphlets led to the setting up of the Franks Committee and the statement which was made earlier by the Lord Privy Seal, when he referred to the party programme of 1955 following upon the Committee's Report. I do not think the battle has yet been won over the Civil Service. Let me give one example, which concerns the question of inspectors' reports.
There are two views on this matter. The view of the Civil Service is well 1669 known and has been stated many times. I have heard it from civil servants in evidence which they have given. It is that if inspectors' reports were to be published, containing both issues of fact and issues of policy, it would be difficult for an inspector to set out these matters clearly and cogently. Furthermore, there may have to be a lot of Departmental discussion upon the issues of policy and it is difficult to split these issues off from the issue of fact. There is a great deal of force in that view.
§ Mr. Rees-Davies
It is not at all a one-sided argument. After having heard the whole of the evidence, of which there is always a long disclosure, from the Civil Service and, on the other hand, the views of lawyers, who always take the contrary view, the Franks Committee under its brilliant chairman came down quite clearly against the Civil Service on this issue. Yet when we look at the draftmanship of the Bill we do not see that the power to make rules of procedure will reside in the Council. It does not, and the argument is that to do so would be taking away Ministerial responsibility.
I cannot agree with that argument. My right hon. Friend the Lord Privy Seal, who was for many years in the post of Home Secretary, must know that that is not the same as taking away Ministerial responsibility. A Minister is responsible for policy. There is no reason why a Minister should be responsible for rules of procedure, which are analogous to those of the Lord Chancellor. He is absolutely responsible for the policy of his Department, for the execution as well as for the formulation of that policy. Where a tribunal is being set up, I see no reason why the Minister should be responsible for the rules of its procedure, which should be formulated by the Council in the light of the general principles enunciated in the Report.
Those general principles are that the citizen should understand and be fully aware of his rights, and apply for those rights. He should be able to hear the case which he has to meet, and having heard it he should have a full opportunity of attending and hearing the case. He should have the right of representation. There should be the power to 1670 administer the oath, and the citizen should be able to question witnesses freely. There should be the right of publication, after a full and clear hearing of the reasons for the decision. Those are the basic rights. If the Council on Tribunals is given power to formulate procedure which relates to tribunals, that would be the way to ensure in future that there are the teeth which are necessary in this matter.
I warmly welcome the Bill. I believe that it should be carried out with the greatest expedition. I believe it is the earnest desire of the Government to ensure the liberty of the subject, but I want to make sure that whatever Government may come hereafter shall not find themselves in difficulties. We must be sure that what we do in the next few months is preserved for the future benefit and liberty of our people.
§ 7.17 p.m.
§ Mr. Arthur Moyle (Oldbury and Halesowen)
I gather from the speech to which we have just listened that the hon. Member for the Isle of Thanet (Mr. Rees-Davies) does not look on the Civil Service with a kindly eye. I hope that his outlook upon the Civil Service is not shared by hon. Members on Government benches. I shall never forget the abuse that was let loose against the Civil Service in connection with the Crichel Down inquiry. I am all for liberty, provided it is balanced with authority, otherwise we cannot get Parliamentary democracy to work.
Therefore, in seeking to promote individual liberty, let us be very careful that we do not destroy Parliamentary democracy in the process. Private discussions which have taken place between civil servant and civil servant in connection with the Crichel Down inquiry were disclosed at the inquiry. Had those civil servants known that they would be exposed to public inquiry they would never have been so free in expressing themselves in such an unguarded way.
Although a product of Welsh Nonconformity and a lover of liberty, I cannot see how we can possibly run an administrative machine like the Civil Service unless there is some area of absolute confidence between the Minister and his principal secretaries and between civil servant and civil servant. Although the hon. Member spoke about the Oliver Franks Committee having come down 1671 against the Civil Service on that point, we had better wait to see what procedure and rules will govern that aspect of the matter in future.
I am very glad that the Bill does not come down 100 per cent. on the side of the lawyers in relation to administrative tribunals. I am all for the legal profession. I am a great admirer of that profession. My only grouse against it is that I was not invited to become a member of it, but, when a halo is put around a barrister's head and it is said that when a chairman of an administrative inquiry or tribunal is to be chosen he must be a lawyer with ten years' experience in addition to his other qualifications, speaking as a product of the trade union movement and having experienced the advantages and disadvantages of administrative law, I feel that I could make a very strong case for public men of wide experience and for men in other professions to hold those positions in some cases.
The British Transport Commission, for instance, might be taken before some arbitor to decide whether it ought to spend £2 million, or £100,000, to make good a certain stretch of canal for which it is responsible. I should have thought an experienced civil engineer would be an ideal chairman for such an inquiry. I would have the lawyer on tap, not on top, in that connection.
I am glad that the Bill does not make legal qualifications the one and only qualification for chairmanship of a tribunal. I have read the Report substantially and I have read the Bill, and regret that it falls short in the kind of case, to which one of my hon. Friends referred, which would come into the category of administrative procedure.
As one who had a great deal of experience of these matters in connection with local government legislation, such as in superannuation Acts, electricity supply Acts, and so forth, I found in my work as a trade union official in hundreds of cases—I have no complaint about it—that the Acts laid down that, in matters of dispute between worker and employer on such questions as compensation rights in respect of redundancy, the question was to be determined by the Minister of the Department concerned. Whenever a dispute had arisen between the parties papers 1672 were submitted by both sides setting out the essentials of the case, but the Minister decided them.
Here is the objection I wish to register against the existing procedure. The Minister considers the case and decides the issue, but the appellants are informed only that the appeal has been allowed or disallowed. To inform the parties to such a dispute only of the bare decision without any reasons for the judgment that has been reached, is most irritating to the appellant if he loses, and to the respondent if he loses.
While I have no wish to alter the position of the Minister in such circumstances, it seems a matter of administrative common sense that in all such cases—there are thousands of them in various departments of local government, and so forth—those who have submitted a dispute should be informed of the reasons for the Minister making his decision in favour or against an appeal.
Those are the main points I wish to make. Perhaps the Attorney-General will look at that aspect of the matter, because it may be one which can be decided apart from the Bill, as a matter of procedure. I am certain that the psychology of the matter would be completely changed if people knew not only the judgment reached, but the reason why it was reached.
§ 7.26 p.m.
§ Mr. Gordon Walker (Smethwick)
We have had a debate very largely dominated by lawyers. I think that before my hon. Friend the Member for Oldbury and Halesowen (Mr. Moyle) spoke we had had an unbroken succession of lawyer Members taking part. For that reason I heard his intervention with even greater pleasure than I normally find in his contributions.
Listening as a layman, with great edification, to those lawyers' speeches, there seemed possibly a suggestion that lawyers have a sort of monopoly of both the love and understanding of liberty whereas, in the long run, that is a matter for laymen and has to be settled by laymen. Laymen may get a better balance in this rather subtle and difficult problem than some of the lawyers.
We have had a debate worthy of the subject we have been discussing. I welcome the Bill. I think it a timely renewal 1673 of an ancient constitutional process which brought our courts into being. They were not born in their present form; they came into being by the same sort of process through which tribunals are going. The courts as we know them came into being because the King, the fount of justice, made a number of ad hoc administrative decisions to extend his court in order to satisfy the demand of his subjects for the settlement of numerous disputes, to meet needs of State administration, and also to raise revenue. As an historian said, in the history of the evolution of our legal system the law and the profits have been closely associated.
We must not forget, and lawyers must not forget, that for many centuries the exercise of the powers of the courts was closely associated with that of the State. Judges on assize were an integral part of the royal administration and were much feared. There is a case on record of the people of an entire town taking to the woods when the assize judges were coming on their seven-year visitation. It was not until the struggle with the Stuarts that the courts became independent umpires separated from the Executive.
Today, Parliament is the fount of justice and in the last quarter century or so—in much the same way as the Crown in the Middle Ages, partly because there was a demand for extension of State activity and also because of a consequential demand for protecting rights against State activity—Parliament has produced a number of tribunals and inquiries and similar processes.
The Bill is continuing something which has been going on for some time because considerable progress has been made by specific statutes in making these tribunals more like courts with the functions of courts, more judicial. That will be carried further by this Bill and we welcome it. As I read it, the Bill represents an effort to sort out the quasi-judicial tribunals from the other kinds and then to equate them much more closely and uniformly with the courts. But, of course, it is a terrific task to sort out the tribunals; they are of every conceivable kind. If one looks at the First Schedule to the Bill, one finds that it finishes up in a most complicated classification and cross-classification of types of tribunals.
1674 As has been said today, there are, in the first place, tribunals which are not in the Bill at all, so that we have a distinction between tribunals which are in the Schedule and those which are not. Then we find that some of those that are in the Schedule have their chairmen appointed from the Lard Chancellor's panel, some have chairmen dismissible only by the Lord Chancellor, some are subject to appeal by the courts, and so on. These various criteria do not coincide, and, according to the Bill, there is no set of characteristics common to any particular set of tribunals.
The Labour Party feels a very special concern with these problems of liberty which form the subject matter of the Bill. We have a rather distinctive attitude to the State and its rôle and functions which is different from that of the Liberal Party and from that of many hon. Gentlemen opposite. We do not take the simple laissez-faire view that the State should do practically nothing, or as little as possible. To us, the problem of liberty is not the simple one of a clash between the individual and authority. If it were, it would be very easy to settle; one could always settle it in favour of the individual and against authority. It is a much more complex and difficult problem than many of the lawyers who took part in the debate seemed to think.
The State has certain positive duties. It has a positive rôle, and, if it does not fulfil it, this, too, would be a danger to liberty. The extensions of welfare, education, legal aid—all these things, which represent an exercise of State power, enlarge liberty. There is not a simple conflict between the extension, of State power and the liberty of the individual, for these extensions of welfare, education and so forth involve both an enlargement of liberty and restrictions on individual liberty
It is, for instance, a restriction on the rights of a parent or child to compel a child to go to school. If one had tried to do that a couple of hundred years ago, it would have been regarded as a most monstrous invasion of liberty. But we regard it as necessary because, on balance, it enlarges the liberty of individuals if they are better educated and the level of education generally in society is higher and more uniform.
There is a much more subtle balance to be struck here than was suggested by 1675 some of the lawyers who spoke today. Although State action is necessary for liberty, there can be abuse of State action or arbitrary power which can destroy liberty. Liberty can be destroyed, on the one hand, if the State refuses to do the things which it ought to do. On the other hand, it can be destroyed if the State abuses its powers. This is a very much more subtle balance to strike than the one presented by the simple conflict between authority and the individual.
It is because the Labour Party takes this view that we are so extremely concerned about individual liberty. As we said very clearly in our booklet, "Personal Freedom", on page 9:It is just because Socialists look to the State to provide measures and machinery for reform that we are jealous for the citizens' rights against the State.We feel a particular interest and obligation to preserve the rights of the individual because we believe that the State has positive actions to perform.
This is not just generality. We have made many concrete proposals and we have done many things. The hon. Gentleman the Member for Torrington (Mr. Bonham Carter) is not right in saying that the Bill is an isolated Measure to help the individual against the State. He forgets the Crown Proceedings Act passed by the Government of 1945, the extension of legal aid introduced by the same Government, the Statutory Instruments Act, the abolition of the special jury.
All these things were done by the Labour Government, and they were part of the work we must be doing all the time to keep the balance right between individual and State. The sort of ludicrous picture painted by the hon. Gentleman the Member for the Isle of Thanet (Mr. Rees-Davies)—a gross distortion of our party as a party which wants to have a "Leviathan State" eating everyone up—is completely false and belied by the record and the facts.
I am glad to say that our policy in "Personal Freedom" preceded the Franks Report by a year and very closely anticipated the conclusions of the Franks Report. Indeed, if one looks through our document, and then turns to the Franks Report, it is very difficult to think 1676 that one did not influence the other. I suppose that the right hon. and learned Gentleman the Attorney-General has not got a copy, but I will give him one in a moment or two. If he looks at page 22 of our document, he will find that all the major proposals made by the Franks Committee for tribunals are here:Members of Administrative Tribunals should as a general rule be appointed by the Lord Chancellor … Hearings should be in public … Legal representation should be permitted … Reports should normally be publishedthe prerogative writs should apply, and so on. Every single important proposal in regard to tribunals made by the Franks Committee was anticipated by our document, and, as my right hon. and learned Friend said, the same thing applies to the Franks recommendations about inquiries.
The Bill is, therefore, in line with the declared policy of the Labour Party. It does not go as far as we should like and it does not go as far as we asked in our document. None the less, we welcome it and support it, although we have a number of doubts about its scope and effect. As my right hon. and learned Friend said, without legal aid, much in the Bill will really be ineffective. There has been much talk today about the need for openness, fairness and impartiality in courts and tribunals. Quite right. But there is a fourth characteristic they should have, namely, accessibility to ordinary people. Unless there is legal aid, certainly for the more important and expensive of the tribunals, openness, fairness and impartiality will not be enough. It is no good having those things if ordinary people cannot reach them.
My right hon. and learned Friend referred to a number of doubts and asked certain questions about the practice, the equipment, and the effectiveness of the proposed Council. I hope that the right hon. and learned Gentleman will be able to answer them. We shall certainly press the matter as much as we can in Committee, if necessary. It is extremely important to have a full and definite picture of the Council, not just a vague idea about it being a "watchdog". For instance, what does the word "continuous" mean? Does it mean daily, weekly, monthly, or what? We want to know because we cannot, without such answers, judge the Bill.
1677 Of course, any sort of watchdog is better than being without a watchdog at all. It is really a principle of our Constitution that anyone who exercises power, be he high or low, is answerable to someone else. Tribunals have not been answerable in this way to an outside body watching them, and the mere fact that there is such a body will, I hope, keep them up to scratch. However, the application of this principle means also that the Council itself must be watched, and this is the duty of Parliament. The annual report will come to us, and I hope that the custom will grow up of having an annual report on the subject so that we may really exercise our watchdog function over the watchdog Council.
I agree with my hon. and learned Friend the Member for Ipswich (Mr. Foot) that the scope of the Bill is not wide enough, that it touches only the fringes of the problem of individual liberty. It is a very important Measure, but let us not blow it up quite so much as did the right hon. Gentleman the Home Secretary. It is not so important as all that. There is a tremendous amount left to do. I am not thinking only of bringing in inquiries, though there is much point in that.
The sort of thing I am thinking of is that it is not only public authority which is a danger to liberty. Concentrations of economic power can be a danger to liberty, and those who really wish to preserve liberty must remember that sort of attack on liberty, also. Part of the remedy is the acceptance by the State of its duty so to guide the economy that great concentrations of economic power do not so much control the lives of individuals or, indeed, the life of society as a whole.
In this matter of liberty and the State, it is not only property rights which are in issue. It is very important that property shall be properly protected. The Bill does noihing, really, but protect property. But this is not anything like the whole of the problem. There is the whole subject of personal rights.
The hon. and learned Member for Bolton, East (Mr. Philip Bell) went so far as to identify liberty with property. He practically got himself saying that the poor man cannot be free.
1678 There are, of course, extremely important personal liberties that have nothing to do with property, and they are not touched on in the Bill. The Government have done little to develop liberty in fields such as the fair treatment of people in claims for pensions or proper protection regarding State security.
The safeguarding of personal privacy against invasion by the State through such means as telephone-tapping is another instance. Telephone-tapping should be much more restricted than it is. One should not get one's mind so fixed on property that one forgets the right of the individual for privacy against the State. It is as important as the other provisions in the Bill. These are matters in which the Labour Party is just as much interested as the valuable but rather narrow scope of the Bill.
We certainly welcome the Bill as far as it goes. It carries forward a process launched by Labour Governments. I can assure the Attorney-General that this further limited but certainly important step forward embodied in the Bill will carry the broad support of both sides of the House.
§ 7.42 p.m.
§ The Attorney-General (Sir Reginald Manningham-Buller)
The right hon. Member for Smethwick (Mr. Gordon Walker) has made a strenuous effort to try to adopt the Bill and claim credit for it and to say that it follows in a line of Labour legislation.
§ The Attorney-General
It may be that that is why the right hon. Gentleman sought to claim credit for it. But it is a wholly ill-founded claim, as I shall show in a moment or two. Throughout his speech he had a certain degree of temerity with which I must deal on behalf of members of my profession on both sides of the House. Throughout his speech was the theme, the very popular theme, of criticising the lawyers and trying to represent that in all respects laymen, professors and dons were far superior to lawyers.
§ The Attorney-General
No—far superior. That was the theme.
I think it is true and non-controversial that we in our profession who attend these courts, who go to these tribunals and attend these inquiries and hearings, are perhaps in a better position than a layman who attends one and is probably violently affected by the result, to give a broad picture to the House of what is going on and what has been going on. That is why when we get a Bill of this sort we find that the lawyers on both sides predominate in the discussion. I do not think that that is a bad thing at all, and I certainly do not think there is any justification for the kind of implied criticism directed to us, no doubt in a spirit of humour, by the right hon. Gentleman.
Everyone in the course of the debate has welcomed the Bill, but I think, having regard to the attendance in the House on both sides and to the practice of this House, perhaps the most significant proof of the merits of this very important Bill is the thin attendance in the House. When a major Bill is generally approved by all hon. Members, then I think it is true to say that they do not feel it necessary to attend the whole day and give their praise.
A Bill like this obviously commands almost universal approval, and those who have attended today, while welcoming the Bill, have given voice to a number of criticisms, many of them perhaps dealing with Committee points, some of them perhaps with more than Committee points; but every hon. Member who has spoken has welcomed the Bill.
The right hon. Gentleman paid a tribute to a Socialist pamphlet, which is obviously not selling particularly well, because he wanted to advertise it, so much. That pamphlet followed a pamphlet called "Rule of Law", which was infinitely superior.
§ The Attorney-General
No; that has sold out. That pamphlet, "Rule of Law", was far superior to the one which copied it, and no doubt what appeared in the pamphlet "Rule of Law" had great effect on public opinion throughout the country.
When one thinks back to the years 1945 and 1951, and when one thinks of 1680 a predecessor in my office referring to an inquiry as something which merely gives an opportunity to blow off steam, and the criticisms in those days of the functioning of inquiries and of the functioning of certain tribunals set up under the Socialist Government—and Crichel Down was not a tribunal, nor a public inquiry—
§ The Attorney-General
No, I know it was not, but I can think of certain tribunals which were set up under the Labour Government which caused great dissatisfaction. When one thinks of that and the fact that nothing was done between 1945 and 1951 to put that right, I say to the right hon. Gentleman that he will have to work much harder to try to convince us that he can claim any credit for this Measure.
I should like to turn to what was said by the right hon. and learned Member for Newport (Sir F. Soskice), who ended his speech by welcoming the Bill. In one sense the universal welcome has made my task more easy. But in a sense it has made my task more difficult, because a wide variety of points have been raised, some of them Committee points with which I should like now to deal shortly, if I can, in the hope that perhaps I may satisfy the hon. Members who raised them. While we all welcome the Bill, I would ask the House to bear in mind the time remaining in this Session. I am sure that all of us who do welcome the Bill will want to facilitate and not delay or prevent its passage to the Statute Book.
The right hon. and learned Gentleman began his speech with a proposition that I personally find difficult to accept, when he said that for most people administrative procedures require more examination than the functioning of tribunals. I quite recognise that some people may take that view. I think that a strong case could be made out the other way, for I think it is true to say, whether rightly or wrongly, that certain proceedings of certain tribunals, such as rent tribunals, have caused, whether justifiably or not—and I do not want to be controversial about that—very considerable disquiet.
The right hon. and learned Gentleman went on to ask why there was in the Bill this unbalance between the part referring to tribunals and the part referring to 1681 administrative procedures? But if he would look at the Franks Committee Report he will see that while the Franks Committee recommend that there should be a Council on Tribunals, when one considers the recommendations with regard to administrative procedure, only two of those recommendations cast functions of any kind upon the Council on Tribunals—namely, Recommendation 72, about the codes of procedure being formulated by the Council and made statutory, and Recommendation 79, that it should consider the basis on which reasonable costs should be assessed. That is why, following as we did the Franks Report, the Bill took the form that it did in another place. By acceptance of the Amendment made there to Clause 1, the functions of the Council on Tribunals have been materially extended from those contemplated by the Franks Report. I do not think any of us will regard that as a bad thing.
I want to say a little more about Clause 1, which, as has been said, is perhaps one of the most important Clauses of the Bill. The right hon. and learned Gentleman asked me what was meant by the expression "keeping under continuous review". That expression does not appear in the Bill. It is taken from paragraph 43 of the Report of the Franks Committee. The words in the Bill are "keep under review". It will be for the Council when appointed to consider in what manner it can best perform this task. It may be by calling for reports as to the manner in which the tribunals function, certainly by watching and having reports on how their procedures are functioning. There is, I should have thought, no difficulty in stating the objective: that is to say, that the Council should, as the Franks Committee recommended, keep the constitution and working of the tribunals under review. The exact methods to be adopted by the Council will be a matter for the Council, when appointed, to determine.
The right hon. and learned Gentleman asked whether the Council would be a full-time or part-time body. In our view, the Council must be a part-time body. If it is to consist of men and women of the eminence and with the breadth of experience which it must have, such people will not be able to give more than part of their time to its work. The chairman, and the chairman of the 1682 Scottish Committee, may be willing to give perhaps half-time to the Council, but the question of the duties to be laid upon the Council must be considered in the light of the amount of time which its members will be able to devote to them.
I hope that I am not missing any of the right hon. and learned Gentleman's questions. I tried to note them as he spoke. Concerning Clause 3, he asked why the Lord Chancellor was to appoint the panels from which the chairmen should be selected and would not appoint the chairmen himself, as the Franks Committee recommended. My noble Friend will constitute a panel of persons suitable to act as chairmen. The reason is that there are so many different tribunals throughout the country that it would be an impossible task for my noble Friend if he had put upon him the burden of selecting the individual chairman in, say, Northumberland or wherever it may be, for a particular session of a tribunal. The system of operating by selection from panels has not worked badly in the past. I believe that by this machinery we are, in effect, achieving the substance of what the Franks Committee desired: namely, the selection by the Lord Chancellor of the persons who are to function as chairmen.
The right hon. and learned Gentleman's next question concerned Clause 4 (1) as to the meaning of the expression that the appropriate Minister "shall have regard to recommendations" made by the Council on Tribunals concerning the appointment of members of the tribunals. The right hon. and learned Gentleman asked what exactly was meant in this context by the expression "have regard to". I can best paraphrase it by saying that in my view it means "pay attention to". It does not mean that the Minister is necessarily bound by the recommendation. The Minister has to make the appointment, but he must pay attention to the recommendation. Having regard to the powers of the Council to make an annual report, obviously he would not be likely to ignore a recommendation, or, indeed, go contrary to it, without very good reason indeed.
On what was really the Second Reading debate on the Bill, when we were discussing the Franks Report, I dealt with the kind of recommendations that the Council on Tribunals would make, for example, 1683 about the balance of representation on a certain type of tribunal, by drawing attention to the fact that the members of a particular tribunal were getting rather on the old side and matters of that sort, or possibly, when names were being put forward, by recommending that there should perhaps be more ladies on a particular tribunal, and so on. I do not think that in practice there will be any difficulty in that regard.
The right hon. and learned Gentleman then asked what was for me a difficult question to deal with, as to why in Scotland the powers of the Lord Chancellor in England would be exerted by the Lord President of the Court of Session. It is rather embarrassing for me to deal with that, but I do not think I should be criticised for saying that my right hon. and learned Friend the Lord Advocate does not occupy a position quite comparable to that of the Lord Chancellor. Very careful thought was given to the question of the right person to exercise these powers in Scotland. Bearing in mind the Lord Advocate's other duties and responsibilities, particularly, perhaps, in connection with the administration of the criminal law, it was considered advisable and right that these powers should be exercised in this instance by the Lord President of the Court of Session. There are precedents for doing that.
The right hon. and learned Gentleman asked questions, with regard to Clauses 8 and 10, as to the position that might arise should there be a divergence between the Court of Session and the Court of Appeal with no machinery for resolving it by going to a higher court. The same position might well arise if there were two conflicting decisions in the courts of appeal in this country. All I can say to the right hon. and learned Gentleman is that I have noted what he said and will further consider the point.
There is force in the view that there should be some way of resolving conflicting decisions of courts of equivalent jurisdiction. One knows of the difficulties which have arisen in Revenue cases where that problem has occurred and how they have necessitated a journey to another House. We have to try to work out machinery to resolve that difficulty without making it easy for appeals to go to the House of Lords on matters of this 1684 sort. That is a matter to which we can give further thought in Committee.
With regard to Clause 10, the right hon. and learned Gentleman asked me about the giving of reasons by tribunals for their decisions. He made the valid point that unless reasons are given, the person affected may not be able to obtain a writ of certiorari. My noble Friend the Lord Chancellor made a statement about that in another place on 13th May and said that an Amendment would be tabled in this House to ensure that in all proper cases reasons would be given. I do not want to cause any alarm of disquiet by the use of the words "in all proper cases". There are certain types of cases which we shall have to consider in which we must, I think, accept the fact, that it is really not possible to give reasons.
The sort of case I have in mind is where a tribunal is trying to assess percentage disability, and in the light of the evidence and in the light of an examination of the disabled person, the view is formed by the tribunal that the disability is, say, 60 per cent. That is something for which it would be very hard for the tribunal to express any reasons why it reached 60 per cent. as the percentage assessment and not, say, 65 per cent. There may be one or two cases like that where the decision of the tribunal is a decision based on expert opinion for which one would find it hard to express reasons.
We may have to make—I am being perfectly frank with the House—an exception for the kind of tribunal which functions in that way. We have to look at that; but we are determined to ensure that in all other cases where particular circumstances of this kind do not apply reasons should be given, partly for the reason put forward by the hon. Member for Oldbury and Halesowen (Mr. Moyle) and partly because, if reasons were given in a proper case, it would enable the case to be taken higher.
§ The Attorney-General
My hon. Friend the Member for Epsom (Mr. Rawlinson) said he had no confidence in circulars. That kind of observation has been made more than once in this debate. All I would say now about that is that I have not heard in this 1685 debate a single word of criticism of the content of those circulars. The only way in which the administrative provisions of the Franks Committee which were accepted by the Government could be put into effect without delay was by the drafting and sending round of circulars of that kind, and that was done. When one hears, as one has heard sometimes in this debate, criticisms of the Civil Service and of its attitude to this problem one should I think bear in mind the promptitude with which it acted in drafting circulars of this kind, which have completely escaped criticism in this debate.
I hope, too, that in due course we shall get some statutory provisions for a code of procedure; but I believe it to be true that it will be much better to set up this powerful Council on Tribunals and let it consider and look at and make suggestions about procedure and then to make the necessary statutory provisions rather than to do so or to seek to do so now in advance of any knowledge of what the Council's recommendations would be.
The hon. and learned Member for Ipswich (Mr. Foot) asked when we could expect further legislation after the recommendations of the Council had been received. Assuming, as I do, that this Government will continue in office for a great many more years, one can safely assume, having regard to what has happened about the Report, that legislation would not be too long delayed after the receipt of the Council's recommendations; but, of course, I cannot speak about what would happen should the events I have predicted not occur.
My hon. and learned Friend the Member for Bolton, East (Mr. Philip Bell) made what he called a number of subsidiary criticisms. I think that as he is not here I will not deal with them. No doubt he will raise them again in Committee. I have taken note of them and they will be considered.
The hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine) asked what was the meaning of the word "particular" in Clause 1 (1, c). I do not think myself that it has any tremendous significance. As I read that subsection the duty of the Council will be to consider such particular matters of procedure as may be referred to it, and 1686to consider and report on such … matters as … the Council may determine to be of special importance.The judgment of whether a matter is of special importance is left to the Council itself. I will again consider what the hon. and learned Member said, but I think myself that this arrangement will work satisfactorily.
He asked, too, why should we delay bringing in further legislation, and why no code of procedure was written into this Bill? We have not delayed. We can only deal with this very big task piecemeal, if we are going to deal with it properly. We really cannot have in one Bill matters dealing with all the various Departments and all the various machinery. I do not think that that would really be feasible. If we had to wait till we had a Bill to deal with all these matters we should have to wait a long time, and I think it is important that we should get the Council working as soon as we can.
The hon. and learned Gentleman raised many complicated points about the Town and Country Planning Acts. I confess I found it a little difficult to follow him, but I can assure him that the points he made will receive most careful examination.
My hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke) made a speech also calling attention to Clause 1 (1, c). I think I have covered most of the points he touched on. He asked whether that provision gave the Council power to look into hearings. If he would be good enough to look at Clause 12 (1) he will see that the expression "statutory inquiry" meansan inquiry or hearing held or to be heldand so on. So the answer to that question is "Yes".
Then he asked for an assurance that hearings would not in future be preferred by the Minister to inquiries. I know of no ground for supposing that the practice with regard to hearings, as opposed to inquiries, will be changed in any way, and I am not prepared to give any such assurance. I do not think there is any ground for it, particularly when one bears in mind that the provision in this Clause applies to hearings as it does to inquiries.
My hon. and learned Friend asked why there should be no rule-making powers in the Bill. One has to bear in mind, in 1687 enacting a Measure, that the rule-making powers may exist elsewhere. My hon. Friend, too, criticised those Circulars as frail and unsatisfactory; unsatisfactory, I think, in his view, merely because they were circulars and could be altered. As I say, I think there would have been much more criticism if those circulars had not been issued.
The hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman) put forward the interesting idea that an appeal should lie directly to the Court of Appeal and then to the House of Lords under Clause 8. It is an interesting suggestion and we will give consideration to it. I am not sure myself whether it would be a good thing. There may be fairly powerful arguments for not permitting that while yet permitting appeal in appropriate cases to the House of Lords.
The hon. Member for Torrington (Mr. Bonham-Carter) suggested that tribunals should give reasons for their decisions so that appeals on law could be effected. I think I have already answered his point.
My hon. Friend the Member for the Isle of Thanet (Mr. Rees-Davies) made a number of points which I have already fully covered.
I hope and trust that I have dealt with the detailed points that have been raised in this debate. I have dealt with some of them perhaps shortly but, I hope, not too shortly. It has been an interesting debate and I should like to say how glad I am that this Bill has received a welcome from all parts of the House. I hope in consequence that those who have criticised this Bill or who may be inclined to do so, on the ground that it might contain more, will at least help us to secure that this Bill, a Bill dealing with an important subject, does pass this House this Session.
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Standing Committee pursuant to Standing Order No. 38 (Committal of Bills).